2012 (10) TMI 304

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..... r.P.C. As such it cannot be said that Court has dismissed the case for non-prosecution - finding recorded by the Tribunal is not binding upon the criminal courts. As such it cannot be said that the order passed by the Appellate Tribunal has the effect of wiping out the prosecution - this Court is not competent to recall the same. Consequently, both the applications are liable to be dismissed.
Sudhir Kumar Saxena, J. REPRESENTED BY : S/Shri Virendra Bhatia, Advocate, Amarjeet Rakhra, Counsel, for the Appellant. S/Shri K.D. Nag, Mohd. Waseem and Dipak Seth, Counsels, for the Respondent. [Order]. A Criminal Miscellaneous Application No. 92202 of 2011 has been moved for recalling the Order dated 29-7-2003 passed by Hon'ble Mr. Justice .....

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..... ground that due to inadvertence and oversight, previous counsel Sri Virendra Bhatia could not appear in the case nor any communication was received by the applicant-petitioner from Sri Virendra Bhatia. Sri Virendra Bhatia has died and it was only in May, 2011, the petitioner learnt about the death of Sri Virendra Bhatia and later on about the dismissal of the case. Learned counsel also referred to an order passed by Custom Commissioner (Appeals) wherein a finding has been given :- "………I find that in the follow up action nothing incriminating was found which could establish nexus between smuggled computer parts and the appellants no. (ii) & (iii). I find supports from the decision of Hon'ble CEGAT in the case of Netai C .....

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..... seven years. In the affidavit filed in support of application seeking condonation of delay he stated that deponent cannot ascertain as to why Sri Virendra Bhatia did not appear on the date, it could be due to inadvertence or oversight. Although it is stated in para 5 that Virendra Bhatia had telephone number of the deponent yet applicant did not receive any communication from him. It is not mentioned that as to why the petitioners could not contact Sri Virendra Bhatia during this period. Delay has not been satisfactorily explained. From bare reading of the order, it is evident that the Court has specifically observed that it is not a case of abuse of the process of any court and not a fit case for exercising inherent jurisdiction under Sec .....

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