- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 988 OF 2007 IN CRIMINAL APPLICATION No. 490 OF 2006 IN CRIMINAL APPEAL No. 460 OF 2006 Arun @ Shankar R. Naidu Applicant Vs. The State of Maharashtra Respondent Mr. Indrajeet Joshi, Advocate for the applicant. Mr. H. J. Dedia, APP the respondent. CORAM : SRI R.M.S. KHANDEPARKAR,& SRI. A.A. SAYED, JJ. DATE : JANUARY 10, 2008. PC . Heard. This is an application for restoration of Criminal Application No.490 of 2006, condoning the delay of 391 days. 2. Crim. Application No. 490 of 2006 came to be dismissed as nobody appeared for the applicant. 3. It is the contention of the applicant that earlier the applicant was represented by - 2 - another advocate and presently the applicant is desirous of engaging Mr. Indrajeet Joshi advocate and accordingly Vakalatnama was signed in his favour by the applicant and which came to be filed in the registry on 30th June 2006. It is further submitted by the advocate that the petitioner verified on 30th June 2006 with computer section which disclosed that no orders were passed in the matter. It is further case of the applicant’s advocate that applicant was under impression that the matter would not be listed in due course. Further on inquiry it was revealed that the matter was already dismissed for non prosecution on 29-6-2007 itself. Neither the application discloses any cause for delay in filing the present application, nor any such explanation could be furnished either from the records or across the bar, except stating that there was a technical error in not filing the application immediately after the order of dismissal. The present application was filed only on 24th August 2007. 4. Section 5 of the Limitation Act undoubtedly entitles a party to seek the - 3 - condonation of delay. However, the same has to be, for the sufficient cause, to be disclosed in the application, to be filed for condonation of delay. In the case in hand, neither the application nor record discloses any ground or sufficient cause for condoning the delay of 391 days in filing the application. It is pertinent to note that even the Original Application No. 490 of 2006 was itself filed beyond the period of limitation and that itself was for condonation of delay. When the law prescribes the specific period for filing an application for restoration, the applicant is required to file the application within the specified period. In case of delay, it has to be explained, disclosing the sufficient cause, for not doing so. In the absence of sufficient cause being disclosed, question of condoning the delay doesn’t arise. 5. It was sought to be contended on behalf of the applicant that as the applicant is in jail, he could not file the application in time. There is no question of showing undue sympathy on the ground that the - 4 - applicant is in jail. There are facilities available in the jail to enable the convicts to file the necessary application in time. There is nothing on record to suggest that applicant was at any time prohibited from filing application in time or taking necessary assistance from the jail authorities. Therefore, question of showing undue sympathy to the applicant on the ground that he had been in jail, does not arise. 6. It is also pertinent to note that in the case in hand undisputedly muddemal property has already been destroyed. 7. For the reasons stated above, therefore, there is no case made out for condoning the delay. The application accordingly stands dismissed and is disposed of. Sd/- [ R.M.S. KHANDEPARKAR, J.] R.M.S. KHANDEPARKAR, J.] R.M.S. KHANDEPARKAR, J.] Sd/- [ A. A. SAYED,J.] A. A. SAYED,J.] A. A. SAYED,J.]