..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.436 OF 2006 Bipin Dayalal Savla. ..Petitioner. Versus The State of Maharashtra and Anr. ..Respondents. .... Mr.Vinod Wagh, Adv. fro the applicant. Mr.A.S.Shitole, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 7th October, 2008. DATED : 7th October, 2008. DATED : 7th October, 2008. P.C.: 1. Heard the learned Advocate for the petitioner and the learned APP for the State. None appears for respondent No.2, though served. 2. The petitioner came to be convicted and sentenced by the learned Metropolitan Magistrate, 41st Court, Shindewadi, Dadar, Mumbai by judgment and order dated 16th June, 2005. By the said judgment and order, the petitioner came to be convicted for the offence punishable under Section 471 read with Section 381 of the M.M.C.Act and the petitioner came to be directed to pay fine of Rs.700/- in default SI ..(2).. for 15 days. The fine amount was deposited by the petitioner on the very same day i.e. on 16.6.2005. 3. Being aggrieved by the judgment and order the petitioner preferred Appeal i.e. Criminal Appeal No.365 of 2005. The said appeal came to be dismissed by order dated 21.9.2006 as the petitioner and his Advocate were absent on that day and on earlier dates i.e. on 8.6.2006, 27.7.2006 and 4.9.2006. Hence, this Revision. 4. As far as the earlier dates i.e. 8.6.2006, 27.7.2006 and 4.9.2006 are concerned, it is seen that the Court was vacant on those dates. In fact Court Room No.24 was vacant from 8.6.2006 till 6.9.2006 and there was no Presiding Officer in the said Court till 7.9.2006. As the Court was vacant, the learned Advocate for the petitioner at the end of the day used to take rozanama and make entries of adjourned dates in his diary. On the last date i.e. on 4.9.2006 the matter came to be adjourned to 19.9.2006. However, due to mistake on part of the clerk the date noted in the diary was 4.10.2006. Moreover, it is seen that notice came to be issued to the petitioner by the Court that the hearing of the ..(3).. appeal was kept on 19.9.2006. On 19.9.2006 as the petitioner and his Advocate were absent, the matter came to be adjourned to 21.9.2006. On 21.9.2006 again the petitioner and his Advocate were absent, hence his appeal came to be dismissed for default. 5. It is seen that the notice issued by the Court to the petitioner stating that the hearing of the appeal was kept on 19.9.2006 was received by the petitioner on 21.9.2006. Due to this, the petitioner was not aware that the appeal was kept for hearing on 19.9.2006 or that it was adjourned to 21.9.2006. As soon as the notice was received, on the next day itself i.e. on 22.9.2006 the petitioner went to the Court, however, he learnt that the appeal had already been dismissed. On the very same day i.e. on 22.9.2006 the petitioner filed an application for recalling of the order of dismissal dated 21.9.2006. The said application came to be rejected. 6. Looking to the fact that the notice regarding the date of hearing of appeal was received by the petitioner after the date of hearing due to which the petitioner could not remain present on the date of hearing of the appeal, no fault can be found with the ..(4).. petitioner. The notice was received by the petitioner on 21.9.2006 and on 21.9.2006 the appeal had already been dismissed. It is seen that without losing any time, on the very next day the petitioner approached the Court and on learning that the appeal was dismissed, he preferred an application and prayed for recalling of the order. 7. Looking to the above facts, in the interest of justice the order dated 21.9.2006 whereby the appeal came to be dismissed for default deserves to be set-aside and is accordingly set-aside. Criminal Appeal No.365 of 2005 is restored to file of the learned Sessions Judge. The learned Sessions Judge to dispose of the said appeal in accordance with law. 8. Criminal Revision Application is disposed of accordingly. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)