((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.240 OF 2008 Motorol Speciality Oils Ltd. & ors. Applicants versus BFIL Finance Ltd. and another Respondents Prakash Naik for applicants. Nilesh M. Bhole i/by M/s.Mulla & Mulla & CBC for respondent no.1. Y.M.Nakhawa, APP for State. CORAM : A.S.OKA, J. DATE : 28th April 2009 JUDGEMENT : 1. The submissions of learned counsel for the parties were heard on the last date. The applicants have been arraigned as accused nos.1, 3 and 4 in a private complaint filed by the first respondent. Process was issued on the said private complaint for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). A revision application was filed by the applicants before the Sessions Court for challenging the order of issue of process. There was a delay in filing ((-2-)) the revision application. Therefore, an application for condonation of delay was filed. By judgement and order dated 2nd November 2007 the application for condonation of delay was rejected. 2. The submission of learned counsel for the applicants is that the process could not have been issued against the applicants on the complaint filed by the first respondent. He submitted that in the application for condonation of delay the reasons for delay were set out and without considering the said reasons, the learned Sessions Judge has rejected the application for condonation of delay. He submitted that while rejecting the application for condonation of delay, the learned Additional Sessions Judge could not have considered the merits of the revision application. He invited my attention to what is held in paragraph 8 of the impugned judgement of the Sessions Court. 3. The learned counsel appearing for the first respondent opposed the submissions by pointing out that the revision application was belatedly filed by the applicants after a lapse of more ((-3-)) than three years and there was absolutely no justification for the condonation of delay. He submitted that in view of the decision of the Apex Court in the case of Subramanium Sethuraman v/s. State of Maharashtra and another (2004-ALL M.R.[Cri] - 2469 [S.C.]) a revision application is not maintainable. 4. I have carefully considered the submissions. By order dated 30th August 2008 this criminal application was ordered to be heard finally at the admission stage. Learned counsel for the applicant has placed on record a copy of application for condonation of delay. In the said application it is stated that the order of issue of process was passed on 07th May 2002 and the applicants were served with the summons on 30th August 2005. It is stated that the summons was itself served after a lapse of more than three years from the date of passing of order on issue of process. It is pointed out that the applicants are residents of Baroda in Gujarat State. It is stated that the applicants were advised that they could file an application under section 482 of the Code of Criminal Procedure, 1973 at any stage. Later on, they were advised that in view of a ((-4-)) decision of this Court a revision application under section 397 of the said Code will have to be filed. Accordingly, a revision application alongwith an application for condonation of delay was filed in December 2006. 5. Considering the date on which the summons of the complaint was served to the applicants, there was sufficient justification for delay in the application made by the applicants. 6. Learned Additional Sessions Judge could not have considered the merits of the revision application by holding that the revision application was devoid of any merits. While considering the application for condonation of delay, he was not called upon to decide the merits of the main revision application and therefore, the finding recorded regarding merits of the revision application was totally uncalled for. 7. Taking overall view of the matter, the learned Additional Sessions Judge ought to have adopted liberal approach while dealing with the application for condonation of delay and the application ought to have been allowed subject ((-5-)) to payment of costs to the first respondent-complainant. 8. Hence, I pass following order :- (a) The impugned judgement and order dated 2nd November 2007 is quashed and set aside; (b) Miscellaneous Application No.88 of 2007 in Criminal Revision Application (Stamp) No.251 of 2007 is allowed subject to condition of applicants paying costs of Rs.10,000/- to the 1st respondent within a period of six weeks from today. Payment of costs will be a condition precedent; (c) The Sessions Court will decide the revision application preferred by the applicants on merits. The revision application shall be decided as expeditiously as possible and preferably on or before the end of October 2009; (d) All contentions of parties on merits of the revision application are expressly kept open.. (A.S.OKA, J.)