1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2906 OF 2008. IN CRIMINAL APPEAL ST.NO.634 OF 2008. Bharat S/o Shrimant Sawase ... Applicant. Versus The State of Maharashtra and another. ... Respondents. ... Mr.P.C.Mayure, advocate holding for Mr.S.G.Chapalgaonkar, advocate for the applicant. Mrs.A.V.Gondhalekar, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 08.09.2009. PER COURT 1. This appeal is directed against dismissal of private complaint bearing SCC No. 1119/2007, in default. 2. Leave to appeal is granted having regard to nature of dismissal of the complaint. 2 3. Heard learned advocate Mr.Mayure, holding for Mr.S.G.Chapalgaonkar, advocate for the applicant. 4. Though served, the Respondent No.2 did not appear in this Court. 5. The appellant filed complaint for offence U/s 138 of the N.I.Act. The Criminal complaint was pending for final hearing. The learned Magistrate found that the appellant was absent on 22.7.2008, when the complaint case was scheduled for taking appropriate steps to secure presence of the Respondent (accused). Therefore, the complaint was dismissed and the proceedings came to be dropped. 6. The contention of the appellant is that the summons could not be served on the accused because the latter eluded the service. He had instructed his advocate to attend the matter on the given date. The absence was not intentional. He had attended Criminal complaint case on earlier dates. He was diligent in prosecuting 3 the case. The advocate could not remain present due to certain difficulties. The appellant submits that the laches on part of his advocate should not impair his just cause. 7. It is pertinent to notice that the accused had not appeared before the trial Court when the complaint case was dismissed. Obviously, it is not a case, wherein the accused was being harassed by the complainant on account of his remaining absent though the accused was required to attend the Court in the context of the said Criminal case. The learned Judicial Magistrate should have awaited for little more time by passing a specific order that if no steps are taken within a given period then the complaint case could entail for dismissal in default. It appears that the complaint has been dismissed with undue haste. Consequently, the impugned order is required to be set aside. 8. In the result, the appeal is allowed. The impugned order is set aside. The complaint case is restored to its original position. The 4 appellant(complainant) shall take appropriate steps and shall show diligence while conducting the prosecution before the trial Court. (V.R.KINGAONKAR,J.) asp/office/Crapp2906.08