((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2299 OF 2008 Shailesh Mulchand Savla Petitioner versus MCGB and another Respondents Dipen Furia i/by M/s.Niranjan & Co. for petitioner. S.S.Pednekar, APP for the State. CORAM : A.S.OKA, J. DATE : 22nd April 2009 PC : 1. Heard learned counsel for the petitioner. Rule. Learned APP waives service for the State of Maharashtra. Advocate for the first respondent waives service. Taken up for hearing forthwith. 2. The petitioner has been arraigned as an accused in a complaint filed by the first respondent for the offence punishable under section 138 of the Negotiable Instruments Act, 1881. There was a delay in filing the complaint. Therefore, an application was made for extension of period of limitation before ((-2-)) the learned Magistrate. That application was rejected. Therefore, the first respondent challenged the said order by filing revision application before the Sessions Court. The revision applicant has been allowed by the impugned order and the delay in filing the complaint has been condoned. 3. Learned counsel for the petitioner submitted that the advocate for the petitioner could not appear at the time of hearing of the revision application as the case was transferred from one Court to another and he was not aware of the order of transfer. He submitted that before filing the complaint, admittedly, the first respondent-Corporation has received the cheque amount. He pointed out that the learned Sessions Judge has held that the first respondent deserves to be given a chance for recovery of the amount. He submitted that such approach is contrary to law. 4. Learned counsel for the first respondent opposed the application by pointing out that as per the routine practice the revision application was transferred from one Court to ((-3-)) another and the advocate for the petitioner must be aware of this fact. He stated that the advocate for the first respondent appeared before the learned Sessions Judge and the advocate for the petitioner was consistently absent on more than two dates. 5. I have considered the submissions. Admittedly the advocate for the petitioner was absent when the revision application was heard by the learned Sessions Court. Whether the deposit of cheque amount by the petitioner is relevant or not is another aspect. But the fact remains that this factual aspect was not brought to the notice of the learned Sessions Judge while deciding the revision application. The learned Judge has observed that a public body like first respondent deserves to be granted a chance to recover the cheque amount of Rs.15.00 lakhs. The payment of cheque amount by the petitioner may not be relevant for taking cognizance of the offence on the basis of averments made in the complaint. But the admitted position that before filing the complaint, the cheque amount was received by the first respondent is a matter which will have to be considered while examining the ((-4-)) prayer for condonation of delay. This aspect has not been considered by the learned Sessions Judge obviously because the petitioner was not present and the 1st respondent did not point out this fact. 6. In the circumstances, I pass following order :- (a) The impugned judgement and order dated 28th July 2009 is quashed and set aside and Revision Application No.1223 of 2007 is restored to file of the Sessions Court; (b) The parties are directed to appear before the learned Principal Judge of the City Civil Court, Mumbai on 15th June 2009 at 11.00 a.m.. The learned Judge may himself hear the revision application or may assign the same to any other Court as per his administrative convenience; (c) The revision application shall be decided as expeditiously as possible and preferably on or before 31st October 2009; (d) All contentions of the parties on merit are expressly kept open; ((-5-)) (e) Rule is made absolute in the above terms. (A.S.OKA, J.)