1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 219 OF 2009 IN Cri. Application No. 881 OF 2000 Dr. Mrs. Roshan Farokh Chinoy & Anr. ... Applicants. V/s. The State of Maharashtra & Anr.. ... Respondents. ----- Mr. A.H.H. Ponda for the Applicants. Mr.Vijay Pradhan, Sr. Counsel i/by M/s. Kiran & Co. for Respondent no. 2. ----- CORAM : A. S. OKA, J. DATED : JUNE 19, 2009 P.C. : 1. Heard the learned counsel appearing for the Applicants and the learned senior counsel appearing for the second respondent. 2. Criminal Application no.881/2000 filed by the applicants in which Rule was issued by this court, was dismissed by this court on 5th of July, 2007 as the Advocate for the applicant was absent. The prayer in this 2 application filed on 20th of April, 2009 is for restoration of the said application which was dismissed for default of the Advocate and also for restoration of the interim order. It is stated in the present application that applicants became aware of the order of dismissal when an intimation / notice dated 10th of March, 2009 from the trial court was received by them requiring them to appear before the trial Court. 3. The learned senior counsel appearing for the second respondent has tendered a reply of the second respondent and has opposed the application. He has pointed out the conduct of the applicants. He pointed out that earlier the criminal application was dismissed for default on 17th October, 2000 and it was restored as the second respondent gracefully did not oppose the restoration. He pointed out that the second respondent had applied for expediting the hearing of the criminal application and therefore, criminal application was kept for final hearing on 7th of October,2005. The application remained on final hearing Board from time to time and ultimately got dismissed on 5th of July, 2007. He submitted that there is a gross delay of 22 months in applying for restoration. He submitted that the interim order was operating in the criminal application and as a result of the interim order, the complaint filed by the second respondent in the year 1999 remained stayed. 3 He, therefore, submitted that the order of restoration cannot be passed. 4. I have considered the submissions of both sides. Perusal of the Farad Sheet of the criminal application no. 881 of 2000 shows that Rule was issued on 11th of August, 2003. The order dated 5th of July, 2007 shows that when the criminal application was called out, the Advocate for the applicant was not present and therefore, this court dismissed the application for default. There is a specific averment made in paragraph 3 of the application that the applicants became aware of the dismissal of the application when they received intimation /notice dated 10th of March, 2009 from the court at Pune. This averment is merely denied in paragraph 9 of the reply by the second respondent. No specific case is made out in the reply that prior to 10th of March, 2009, the applicants were made aware of the dismissal of the application. 5. The present application has been filed on 20th April, 2009. The application of the applicants was dismissed as their Advocate could not remain present. Therefore, the applicants cannot be allowed to suffer. It is true that a prejudice will be caused to the first respondent by restoration of the application after lapse of 22 months. Therefore, the applicants will have 4 to pay substantial amount by way of costs to the second respondent. 6. Hence, I pass following order : (a) Criminal Application No. 881 of 2000 is restored and the interim order passed thereon is restored subject to the following conditions : i. The applicants will pay costs of Rs. 15,000/- to the second respondent within the period of four weeks from today. The payment of costs will be a condition precedent; and ii. The applicants will file a complete compilation of the criminal application no. 881 of 2000 typed on ledger papers so that the file can be reconstructed. The compilation will be filed within three weeks from today. (b) If the compilation is not filed within the stipulated period of three weeks, the application no.881/2000 will stand dismissed without further reference to the court. 5 (c) If compliance is made by the applicants, the criminal application no. 881 of 2000 shall be placed on final hearing Board of criminal applications to be notified for August, 2009 in first ten matters. (A.S.OKA,J) .....