1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1935/2009 Rustam Shankar Jakate ..vs.. Tukaram Pandurang Dhagekar and anr. --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. Chopde, Advocate for applicant. Mr. Vyas, Advocate for non applicant nos. 1 and 2. Ms. Khade, A.P.P. for non applicant no. 3. CORAM:- R. Y. GANOO, J. DATED:- 17 th AUGUST, 2009. 1. There was delay in filing Criminal Complaint against the applicant under Section 138 of the Negotiable Instruments Act. Non applicant nos. 1 and 2 filed Misc. Criminal Application No. 907/2006 that the Misc. Application was decided by learned Chief Judicial Magistrate, Akola by order dated 09.07.2008 and the delay was condoned on payment of costs of Rs. 300/-. Against that order, criminal revision was filed being Criminal Revision No.236/2008 in the Sessions Court and the learned Principal Sessions Judge, Akola, by judgment and order dated 23.01.2009 rejected the said revision. 2. The applicant has filed this application with two prayers. By prayer clause (a) he wants to challenge the order regarding condonation of delay and an alternate 2 prayer is made so as to challenge the order of issuing process. 3. As the matter was called out, learned counsel for the applicant sought liberty to institute appropriate proceedings before the appropriate Court so as to challenge the order of issuance of process. The liberty can be granted. Order shall be passed hereinafter. 4. So far as the question of condonation of delay is concerned, it is noticed that there is delay of 15 days. Both the Courts have considered reasons for the condonation. 5. Learned Advocate Mr. Chopde submitted that non applicant nos. 1 and 2 did not take positive steps for substantially long time and waited for a long time for getting acknowledgment in regard to the notice issued and subsequently filed the complaint after a period of 15 days after the limitation period is over. According to learned Advocate Mr. Chopde, the courts below have erred in condoning the delay. According to him, the non applicants were indolent. Hence, the delay ought not be condoned. 6. I have considered the records, which clearly indicates that non applicant nos. 1 and 2 though it fit to 3 await for the AD card. It is only when they realised that the AD card is not likely to come, they filed complaint and in the entire process, delay of 15 days caused. 7. The conduct on the part of non applicant nos. 1 and 2 in filing a complaint after 15 days from the last date cannot be considered as something for which non applicant nos. 1 and 2 should suffer penalty of dismissal of the complaint. Both the Courts have carried out exercise properly and even cost of Rs. 300/- has been granted. This not a fit case in which the Court should interfere. Hence, the order. (a) The application is required to be dismissed so far prayer clause (i) is concerned. (b) The application is at the admission stage. So far as challenge to order of issuance of process, the applicant is free to institute appropriate proceedings in appropriate Court so as to challenge the order of issuance of process. JUDGE kahale