1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 127 OF 2009 IN CRIMINAL APPLICATION NO. 348 OF 2008 IN CRIMINAL WRIT PETITION NO. 1154 OF 2001 Viplav Trading Ltd. ..Applicant versus The State of Maharashtra & Anr. ..Respondents Mr. Shirish Gupte – Sr. Advocate with Mr. Rajiv Ravi and Mr. Ayaz Bilawala i/b. M/s. Bilawala & Co. for Applicant. Mrs. P. P. Bhosale – APP for State. Mr. Benny Joseph i/b. M/s. Sanjay Udeshi & Co. for Respondent No. 2. CORAM : S. A. BOBDE, J. DATED : 8TH SEPTEMBER, 2009. P.C. : 1. By Criminal Application No. 127 of 2009, the applicant – accused No.1 has applied for condonation of delay for a period of 3 years and 76 days in filing the Criminal Application No. 348 of 2008 for restoration of Writ Petition No. 1154 of 2001 and for hearing on merits. 2. On 20th June 2005 this Court dismissed the Writ Petition in the following words : 2 “None for the petitioner. By this petition the petitioner challenges the order by which its application for discharge was rejected. No illegality is pointed out in the order refusing discharge. No interference is therefore called for. Petition is dismissed.” 3. The daily board apparently showed the name of the Advocates for the petitioner as “M/s. Oanduab & Associates”. Obviously no one attended the matter in response to the aforesaid name. The application for restoration is preferred on 1st October 2008 on the ground that the applicant was unaware of the dismissal of their petition and having come to know has preferred the application for restoration at the earliest. 4. The learned counsel for the respondent No. 2 fairly accepted that such a name as appeared in the cause title apparently does not exist at all. He however submitted that it cannot be said that the petition has been dismissed in default at all but it is dismissed on merits. A plain reading of the Order of the learned Single Judge dated 20th June 2005 however makes it clear that the court had not applied its mind to the merits of the matter but has merely observed that no one has pointed out any illegality in the order and therefore no interference is called for. In the beginning of the order the court has stated that none appears for the petitioner. For all practical purposes this is 3 in my view the order dismissing the petition in default. Hence, application for restoration is tenable. 5. The learned counsel for the respondent No. 2 further submitted that there is an inordinate delay in preferring application for restoration. The learned counsel submits after the petition was dismissed as above, the applicant appeared before the lower court as is evident from the roznama which the respondent No.2 has reproduced in the reply. However, Mr. Gupte the learned counsel for the applicant points out that the roznama in respect of the appearance of the parties on 31st July 2007, 18th August 2007, 14th January 2008 and 13th August 2008 does not disclose appearance of the present applicant but the appearance is of the other accused. The learned counsel for the respondent No.2 is not in a position to controvert this. 6. In these circumstances, it must be held that the applicant did not have knowledge of the dismissal of the petition in default and since the name of their Advocate which was “Pandian and Associates” did not appear in the cause title but was shown as “M/s. Oanduab & Associates”, there was sufficient cause for filing application after a long period. In these circumstances, application for condonation of delay and application for restoration are hereby allowed and the writ petition No. 1154 of 2001 is restored to file subject to payment of costs of Rs.15,000/- (Rupees Fifteen 4 Thousand) by the applicant to the respondent No.2. Payment of cost is condition precedent. Costs to be paid within a period of two weeks from today. 7. In the result, both the Applications i.e. Criminal Application No. 127 of 2009 for condonation of delay and Criminal Application No. 348 of 2008 for restoration of the petition are disposed of accordingly. Writ Petition is restored to file. Hearing expedited. (S. A. BOBDE, J.)