JUDGMENT Hon’ble Amitava Lala, J.—On 17th January, 2005 the aforesaid criminal miscellaneous writ petition was filed by the writ petitioners before this Court. 2. Fact remains that the petitioners are Directors/Promoters of a company, which obtained a foreign currency loan of Rs. 2,65,00,000/- from the Industrial Development Bank of India (hereinafter called as ‘IDBI’). According to the petitioners, estimated cost of the project is Rs. 7,40,00,000/-. The promoters of the company contributed Rs. 2,00,00,000/- and remaining amount of Rs. 2,09,00,000/- was raised through public issue from Indian residents and non­resident investors. According to the petitioners, due to certain stringent conditions imposed by the State Pollution Board, the operation of the company ‘s plant had to be stopped in the year 1999 and the IDBI took control of the entire assets of the company and its plant and machinery in September, 2003. The company has consequently been de-listed by the stock exchange. The Registrar of the companies filed a first information report (hereinafter called as ‘F.I.R.’) against the petitioners in respect of various offences. In such report of the Registrar it is mentioned that Stock Exchange and SEBI (Securities and Exchange Board of India) have also initiated proceedings against the petitioners, whereas according to the petitioners no such thing had happened. In any event, it has been specifically stated in the F.I.R. that the Directors and Promoters of the company are absconding and continuing to remain traceless. According to the petitioners, the dispute is of civil nature. 3. However, from the record it appears that on 24th January, 2005 a Division Bench of this High Court directed to put up this matter as fresh on a particular date on the basis of the prayer of the learned Counsel for the petitioners. On 28th January, 2005 when none appeared on behalf of the petitioners even when the list was revised, the writ petition was directed to be placed in-4he next cause list. On 23rd May, 2006 again the writ petition appeared before this Bench comprising of Amitava Lala and Shiv Shanker, JJ., but when none appeared in support of the writ petition even on the repeated calls, the following order was passed by this Bench on 23rd May, 2006 : “None appears in support of the writ petitioner even on the repeated calls. The date of F.I.R. is 6.6.2003. However, in the prayer, another date has been incorporated as 9.11.2004. The date of F.I.R. is 6.6.2003. However, in the prayer, another date has been incorporated as 9.11.2004. The writ petition has been filed on 22.12.2004. We have not received any submission as regards to the delay in filing the writ petition. Two dates of F.I.R.’s have been incorporated in one writ petition. Under such circumstances, the writ petition is dismissed. Interim order, if any, stands vacated. No order is passed as to costs.” 4. However, from the record we find that the department has treated the actual date of filing of the writ petition as 13th January, 2005. Although we have said in the order dated 23rd May, 2006 that no explanation regarding delay in filing the writ petition is available but we find that a solitary explanation has been given in paragraph-12 of the writ petition with regard to major abdominal surgery in January, 2002 of the petitioner No. 1, who was ailing for some time with undiagnosed symptoms. Therefore, such explanation cannot be seemed to be cogent in filing the writ petition belatedly only on 13th January, 2005 when the F.I.R. had been lodged on 6th June, 2003. Moreover, apart from petitioner No. 1, the other petitioners were also parties to the writ petition, with regard to whom no explanation is given as to why the writ petition was not filed in time by them and also on behalf of the petitioner No. 1 to avoid the unnecessary laches. In any event, on the relevant date the writ petition was dismissed in view of non-availability of the petitioners’ Counsel, who was reluctant in proceeding with the writ petition and was habitual defaulter in proceeding before the Court as also available in the record. 5. Belatedly on 4th March, 2008 Mr. Prabodh Gaur, learned Advocate, has come forward with an application for recalling the order dated 23rd May, 2006 as well as application for condoning the delay, to hear out the writ petition on merits. The only ground has been taken as follows : “4. That, due to oversight of the office of the Counsel for the petitioners, the aforenoted matter could not be noticed in the cause list.” 6. The only ground has been taken as follows : “4. That, due to oversight of the office of the Counsel for the petitioners, the aforenoted matter could not be noticed in the cause list.” 6. A further explanation has been given that when the deponent of the affidavits filed in support of such applications, namely, S.M.A. Rizvi enquired regarding pendency of the case only on 10th February, 2008 then he came to know about the order of dismissal of the writ petition passed on 23rd May, 2006. Even thereafter it took approximately about three weeks’ time in filing this application. As and when the matter earlier appeared before this Court for the purpose of passing an appropriate order on 11th August, 2008, learned Additional Government Advocate opposed the prayer and said that he wants to file counter affidavit with regard to the applications for condonation of delay and recall of the order, which prayer was allowed by this Court with a liberty to the petitioners to file rejoinder and further directed to list the same for hearing on contest. On the date of hearing, Mr. S.M.A. Kazmi, learned Senior Counsel appeared with Mr. Prabodh Gaur with battery of lawyers and contended before this Court that it is an inadvertent mistake on the part of the learned Counsel Mr. Prabodh Gaur not to follow the list. He has full faith on Mr. Gaur. Had it not been the case of Mr. Gaur, he would not have prayed for condoning the delay and recall of the order, which has been passed on 23rd May, 2006. Mr. Neeraj Kant Verma, learned Additional Government Advocate appearing for the State, has vehemently opposed the prayer for condoning the delay and recall of the order on such flimsy ground and categorically stated that by virtue of the laying down maxim of “Vigilantibus non Dormientibus, Aequitas subvenit” law helps those who are alert and not those who sleep on their rights the applications are liable to be dismissed. Sofar as the merit with regard to condonation of delay and recall is concerned, he categorically stated that the petitioners are absconding and evading arrest for about last three years and nine months. The investigation was handed over by the civil police to the Economic Offences Wing on the orders of the State Government in 2005. Sofar as the merit with regard to condonation of delay and recall is concerned, he categorically stated that the petitioners are absconding and evading arrest for about last three years and nine months. The investigation was handed over by the civil police to the Economic Offences Wing on the orders of the State Government in 2005. The deponent, who has sworn the counter affidavit, has took over the investigation from his predecessor on 1st September, 2007 and his investigation is complete. An approval for the arrest of the petitioners was applied for alongwith “Last Progress Report” (‘L.P.R.’) and the State Government after being satisfied that the same should be accorded, approved it on 16th June, 2008. Since then he (the deponent of the counter affidavit) has been making sincere efforts to apprehend the accused persons but in spite of regular and relentless daily raids, they have so far evaded from being arrested and have also not surrendered before the Court below. The charge-sheet will be submitted very shortly. Therefore, Mr. Verma submitted not to pass any order in favour of such petitioners. Rejoinder particularly in dealing with paragraph-10 of the counter affidavit seems to be evasive in nature. 7. According to us, filing of writ petition on 13th January, 2005 when the F.I.R. was lodged on 6th June, 2004 with such flimsy ground, in spite of filing the writ petition not attending the Court not once but twice, remaining absent on some flimsy ground of Advocate about escaped attention and further delay in making the application for about a period of two years again on the flimsy ground neither can dispel the cloud nor can remove the suspicion prevailing in the mind of the Court as against the specific affidavit of the State that it is a case of economic offence and accused are absconding and evading arrest for a considerable period. We are of the view that we cannot show any sympathy to such applicants. Balance of convenience is prone to refusal of prayers of the petitioners. 8. Thus, in totality we are of the view that both the applications on account of condonation of delay and consequently on account of recalling are liable to be dismissed and are accordingly dismissed, however, without imposing any cost. ————