1 Cri-Applns-2660-279 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Application No.2660 of 2009 IN Criminal Appeal No. of 2009 V.N. Kullaruwar & ors. & & Applicants (Orig.complainants since deceased) v/s. The State of Maharashtra & ors. & & Respondents (Orig.Accused Nos.1 & 2) A N D Criminal Application No.279 of 2009 IN Criminal Appeal No. of 2009 V.N. Kullaruwar & ors. & & Applicants (Orig.complainants since deceased) v/s. The State of Maharashtra & ors. & Respondents (Orig.Accused Nos.1 & 2) Mr.P.A. Sawant with Mr.Kunal V. Phoole for Applicants. Smt.A.A. Mane, APP for State. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 25th April 2011 2 Cri-Applns-2660-279 P.C. : 1. These are the two applications for leave to file appeal against the order of dismissal of the complaint under Section 138 of the Negotiable Instruments Act. The order of dismissal was passed on 22nd January 2009 which is challenged. 2. The complaint was filed by the two complainants, who are the husband and wife. The complaint was filed in the year 2000. The wife was complainant No.2. The wife expired on 16th June 2002. Complainant No.1 could have prosecuted the complaint. He did not. After 14 adjournments for serving the summons fresh upon the accused, who were not found, the complaint came to be dismissed. Just prior to the dismissal of the complaint, complainant No.1, the husband, also expired. 3. The application is sought to be made by the heirs to be brought on record in this appeal if leave to appeal is granted. The impugned order records that the complainant could not secure the presence of the accused, has not attended for the last more than one year and has not even paid the process fee to prepare the summons for service in the local 3 Cri-Applns-2660-279 newspaper. Hence the order concludes that the complainant is not interested in this matter. There is nothing to show that this finding is erroneous. 4. It is argued that the complainants were old and could not give instructions. The complaint shows that the complainants were 75 and 70 years old. When they lodged the complaint they were of that age. If they were fit enough to lodge the complaint, they must be taken to be fit enough to prosecute the complaint or at least have it prosecuted through another. That having not been done after 14 adjournments, the learned Judge has dismissed the complaint. The order cannot be faulted. 5. Leave to appeal is refused. 6. Consequently, substitution of the names does not arise. 7. Both the applications are disposed of accordingly. (SMT.ROSHAN DALVI, J.)