1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Application (APPP) No. 350/2010 in Criminal Application (APPP) No. 349/2010 in Criminal Application No. 755/2007 (M/s Jejani Udhyog .vs. Vinar Ispat Limited and ors. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. S.M. Bhangde, Advocate for Applicant. Mr. V.M. Deshpande, Advocate for Respondents 1 to 4. Mr. A.M. Dongaonkar, Advocate for Respondent no.5. Mr. N.R. Rode, APP for Respondent No.6 CORAM : R.G. KETKAR, J. DATED : OCTOBER 19, 2010 Heard learned counsel for the parties. This is an application for condonation of delay of 167 days caused in filing application. The applicant had filed Criminal Application No. 755 of 2007 challenging the order dated 16.2.2007 passed by the learned Judicial Magistrate First Class and the Special Court, 138, Nagpur below Exh.1 in Criminal Case No. 366/2003. By that order, the learned Magistrate dismissed the complaint. Initially in Criminal Application No. 755/2007, notice before admission was issued on 24.7.2007. On 2 3.4.2008, after hearing the learned counsel for the applicant, learned counsel for respondent no.2 and learned APP for respondent no.6, the application was admitted and the parties were given liberty to move for early hearing, if necessary. The matter was thereafter listed for final hearing and on 1.9.2009 the application was dismissed for want of prosecution. The applicant has filed Misc. Criminal Application No. 349/2010 for restoration and the present application is filed for condonation of delay of 167 days caused in filing the restoration application. In para 5 of the application, it is averred that the counsel for the applicant, due to oversight, failed to note the matter in the cause list and the matter remained unattended on that day. It is further averred that the applicant does not stand benefited by lodging application late and refusal to condone may result in meritorious matters being thrown out at very threshold on technical ground and the cause of justice being defeated. The learned counsel for the applicant, therefore, prayed for condoning delay of 167 days. On the other hand, learned counsel for respondents no.1 to 4 strenuously opposed the application on the ground that even the complaint filed by the applicant was dismissed in default on 16.2.2007. Thereafter the main application was also dismissed for want of prosecution on 1.9.2009. This clearly shows that the applicant is not vigilant in prosecuting the case and the delay ought not to be condoned having regard to the overall conduct of the applicant. It is further 3 submitted that no sufficient cause is made out for condoning the delay. I have considered the rival submissions made by the learned counsel appearing for the parties. It is not in dispute that on the complaint filed by the application under Section 138 of the Negotiable Instruments Act, 1881, process was issued by the learned Magistrate. Against that order, the non- applicant no.1 to 5 preferred Criminal Revision No. 856/2005 before the learned 4th Additional Sessions Judge, Nagpur. On 10.8.2005 learned counsel for non- applicants no.1 to 4 filed an application for adjournment on the ground that the said revision is likely to be taken up for early hearing for quashing of the proceedings before the learned Magistrate. Subsequently the complaint was dismissed on 16.2.2007. Thereafter the applicant took out application for recalling of the order dated 16.2.2007. In that application, it was set out that in Criminal Revision No. 856/2005 the learned Additional Sessions Judge has called the record of the case from the file of learned Magistrate. However, the prayer to recall the order dated 16.2.2007 was rejected on 21.2.2007. It is not in dispute that after hearing the learned counsel for the applicant and the learned counsel for respondent no.2 as also learned APP for respondent no.6, Criminal Application No. 755 of 2007 was admitted. Considering the averments made in paras 5 and 8 of the application, I am satisfied that the applicant has made out sufficient cause for condoning the delay. The learned counsel for respondents no.1 to 4 4 submitted that the complaint before the learned Magistrate was also dismissed on 16.2.2007 as the complainant remained absent. It was, therefore, submitted that the conduct of the applicant disentitles him from seeking condonation of delay. I do not find any substance in the submission. Considering the averments made in the application and also in the interest of justice, the delay deserves to be condoned. Hence the application is allowed in terms of prayer clause (a). Criminal Application (APPP) No. 349/2010 Not on board. By consent, taken up on board. Heard learned counsel for the parties. This application is for restoration of Criminal Application No. 755/2007 by recalling the order dated 1.9.2009. For the reasons separately recorded in Criminal Application (APPP) No. 350/2010, this application deserves to be allowed. Hence the application is allowed in terms of prayer clause (1). Criminal Application No. 755/2007 stands restored to file. JUDGE halwai