Mangaji Balaji Chauhan vs State Of Gujarat

                                                                                     NEUTRAL CITATION




   R/CR.MA/14641/2023                                   ORDER DATED: 19/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL MISC.APPLICATION NO. 14641 of 2023
                               In
         R/CRIMINAL REVISION APPLICATION NO. 1057 of 2023
                              With
                R/CRIMINAL APPEAL NO. 1057 of 2023

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                          MANGAJI BALAJI CHAUHAN
                                   Versus
                            STATE OF GUJARAT
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Appearance:
MR. KIRTAN H MISTRY(10012) for the Applicant(s) No. 1
MR HEMANG S BHARWAD for the Respondent(s) No. 2
MS JIRGA JHAVERI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 19/08/2023

                                ORAL ORDER

ORDER IN CRIMINAL MISCELLANEOUS APPLICATION

1. This Application has been filed praying for condonation of delay of 98 days in filing of the above Criminal Revision Application.

2. It is submitted that the applicant is serving sentence for the conviction under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to in short as 'the N.I. Act') and thus, was not in a Page 1 of 7 Downloaded on : Sun Sep 17 01:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/14641/2023 ORDER DATED: 19/08/2023 undefined position to take assistance to receive the certified copies of the orders. It is also submitted that only after the family members could initiate for settlement, the applicant could prefer a Revision Application and all the above factors have contributed to the delay.

3. In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others reported in AIR 1987 SC 1353 it has been observed as under :-

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning- ful manner which subserves the ends of justice--that being the life- purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that Page 2 of 7 Downloaded on : Sun Sep 17 01:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/14641/2023 ORDER DATED: 19/08/2023 undefined can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

4. Considering the submissions advanced and in view of the facts and circumstances of the case and the ratio laid down in the above judgment, the present application is allowed and the delay of 98 days in filing of the Criminal Revision Application is condoned.

NEUTRAL CITATION R/CR.MA/14641/2023 ORDER DATED: 19/08/2023 undefined

5. Let the Criminal Revision Application be listed for hearing today.

Sd/-

(GITA GOPI, J) ORDER IN CRIMINAL REVISION APPLICATION

1. RULE. Learned Additional Public Prosecutor waives service of Rule on behalf of the respondent - State and learned Advocate Mr. Hemang H. Bharwad waives service of Rule on behalf of the respondent No.2.

2. Challenge is given to the concurrent findings of conviction and sentence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to in short as 'the N.I. Act').

3. Learned Advocate for the applicant submitted that during the pendency of the proceedings, parties have settled the disputes amicably outside the Court, and that there remains no grievance between them and therefore, the present application be allowed.

NEUTRAL CITATION R/CR.MA/14641/2023 ORDER DATED: 19/08/2023 undefined

4. The respondent No.2 - Ramanbhai Maganbhai Nadiya

- the original complainant is present before the Court and is identified by learned Advocate Mr. Hemang S. Bharwad. Learned Advocate Mr. Hemang S. Bharwad seeks permission to file his Vakalatnama. Registry to accept the same.

5. Learned advocate for the respondent no.2-original complainant states that the complainant has received the entire cheque amount (i.e. Rs.3,00,000/-) as agreed between the parties and the complainant does not want to pursue the matter now in view of amicable settlement and has given consent for compounding the offence. The complainant also filed an affidavit to that effect and affirms the contents therein.

5. Since the entire amount has been received by the complainant and the complainant has given consent for compounding the offence, keeping in mind the object of Section 147 of the N.I. Act, which is an enabling provision which provides for compounding the offence and may require the consent of the Page 5 of 7 Downloaded on : Sun Sep 17 01:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/14641/2023 ORDER DATED: 19/08/2023 undefined aggrieved for compounding the offence, however, the specific provision under Section 147 of the N.I. Act, inserted by way of amendment towards special law, would give overriding effect to sub-section (1) of Section 320 Criminal Procedure Code, 1973 (CrPC) as has been observed in the case of Damodar S. Prabhu v. Sayed Baba Lal, AIR 2010 SC 1907. Accordingly, as the dispute has been resolved and the entire amount has been paid to the complainant, in consonance with the object of the NI Act and the provisions under Section 147 thereof, the matter is considered as compounded.

6. In aforesaid view of the matter, the judgment and order passed by the learned Trial Court of conviction and sentence for the offence punishable under Section 138 of the NI Act, as affirmed by the learned Appellate Court, are quashed and set aside. The applicant stands acquitted.

7. Accordingly, the present application stands disposed of in the above terms. Rule is made absolute to the aforesaid extent. Direct service is permitted TODAY.

NEUTRAL CITATION R/CR.MA/14641/2023 ORDER DATED: 19/08/2023 undefined It is directed that the applicant be released forthwith.

Sd/-

(GITA GOPI, J) CAROLINE Page 7 of 7 Downloaded on : Sun Sep 17 01:49:46 IST 2023