1 (Crim appln 5213 of 2009) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5213 OF 2009 ALONG WITH CRIMINAL APPLICATION NO. OF 2009 IN CRIMINAL APPEAL NO. OF 2009 M/s. Kumar Beharay Rathi ...Applicants Vs. Mr.Pramodkumar Tiwatane and Anr. ...Respondents ----- Mr.Abdul Kader Millwala for Applicants Mr.Atul P. Vanarse for Respondent No.1 Mr.P.S. Hingorani -APP for the State ----- CORAM: V.M. KANADE J. DATED: 1ST OCTOBER, 2010 P.C. 1. Heard the learned counsel appearing on behalf of the Applicants and the learned counsel for the Respondent No.1. 2. This is an application for condonation of delay in filing application for leave to file an appeal. It is submitted that the complaint was dismissed in April, 2006. The Applicants came to know about the dismissal 2 (Crim appln 5213 of 2009) in December, 2006, when they appointed a new advocate. It is submitted that against this order, they have preferred a revision application in January, 2007. This revision application was dismissed on 18.4.2009. It is submitted that the Applicants were taking legal advise and initially they were considering the filing of a writ petition in this Court. However, later on they were advised that a leave to appeal has to be filed against the said order and, therefore, this application was filed in November, 2009. The learned counsel for the Applicant has relied on a judgment of the Learned Single Judge of this Court in the case of Basantlal Hariram Ahuja vs. State of Maharashtra & Anr. reported in 2007 ALL MR (Cri) 1055, wherein the Court has said that liberal approach is required to be adopted in dealing with the case u/s. 5 of Limitation Act. He also relied on a judgment of the Apex Court in the case of J.M. Bhansali and oRs. vs. The State of Madras and Anr. reported in AIR 1968 Madras 373(V 55C 87), wherein it has been held that the delay caused in filing the appeal due to the time taken by pendency of writ petition has to be excluded and delay has to be condoned. 3. The submission made by the Applicants cannot be 3 (Crim appln 5213 of 2009) accepted. In the present case no satisfactory explanation has been given as to why the Applicants have waited from April, 2006 to January, 2007 in filing the revision application. The excuse given by the Applicants that they came to know about dismissal only in December, 2006 also is not a satisfactory explanation. It is the duty of the Applicants to be diligent and to make proper enquiries about pendency of the case. No explanation has been given as to what steps have been taken for making the enquiries from April, 2006 to January, 2007. Thereafter, even assuming that the time taken during pendency of the revision application from January, 2007 to April, 2009 is excluded even, thereafter, satisfactory explanation has not been given as to why no steps have been taken from April, 2009 to November, 2009 in filing of leave to file appeal. The explanation given by the Applicants that since the Applicant Company is very huge and, therefore, due to lack of coordination, the application for leave to appeal was not filed, cannot be accepted. When the complaint is dismissed, a right accrues in favour of accused and this right cannot be taken away by condoning the delay, which is not satisfactorily explained. 4 (Crim appln 5213 of 2009) 4. Hence, application for condonation of delay is rejected. Application for leave to file an appeal does not survive and is disposed of. (V.M. KANADE J.)