Bombay High Court
Central Bureau Of Investigation ... vs Sonal Balubhai Chitroda And Ors on 29 September, 2016
Bench: R.P. Mohite-Dere
appr.424.13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 424 OF 2013
IN
CRIMINAL REVISION APPLICATION (STAMP) NO. 452 OF 2013
Central Bureau of Investigation (CBI) )
(ACB), Tanna House, Colaba, )
Nathalal Parekh Marg, )
Mumbai 400 039 ) ...Applicant
) (Ori. Complainant)
Versus
1. Sonal Balubhai Chitroda ig )
w/o. Suresh B. Verma, )
R/o. 401, Bhavya Niketan, T.P.S III, )
Santacruz East, Mumbai -55 ) ...(Ori. Accused No.4)
)
2. Suresh B. Verma, )
R/o. 401, Bhavya Niketan, T.P.S III, )
Santacruz East, Mumbai - 55 ) ...(Ori.Accused No.5)
)
3. State of Maharashtra ) ...Respondents
Mr. Y. M. Nakhwa, Spl. P.P for the Applicant-CBI
Mr. Ganesh M. Ahuja with Mr. V. G. Talreja I/b M/s. G. D. Talreja &
Associates for the Respondent Nos. 1 and 2
Ms. P. P. Shinde, A.P.P for the Respondent No.3-State
CORAM : REVATI MOHITE DERE, J.
RESERVED ON : 5th AUGUST, 2016
PRONOUNCED ON : 29th SEPTEMBER, 2016
SQ Pathan 1/11
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appr.424.13.doc
ORDER :
1. The short question is, whether the applicant has, shown
`sufficient cause' for condoning the delay of 174 days in preferring the
aforesaid revision application.
2. The applicant-CBI being aggrieved and dissatisfied with the
judgment and order dated 11th January, 2013 passed by the learned Special
Judge for CBI Cases, Greater Bombay in Special Case No. 58 of 2009
discharging the respondent Nos. 1 and 2 herein, has filed the aforesaid
revision application alongwith the aforesaid delay condonation application.
The said application seeking condonation of delay of 174 days in filing the
aforesaid revision application, has been opposed to by the respondent
No. 2 Suresh B. Verma, by filing an affidavit in reply. It is stated in the said
affidavit in reply, that the applicant-CBI has not properly explained the
delay and that no sufficient cause is shown to condone the delay. The
learned Counsel for the CBI thereafter filed an additional affidavit setting
out in detail, the reasons for the delay in filing the aforesaid revision
application. The respondent No. 2 has also filed his reply to the said
additional affidavit.
SQ Pathan 2/11
appr.424.13.doc
3. Learned Counsel for the applicant-CBI submitted that the
applicant had given sufficient reasons for condoning the delay. He
submitted that the applicant has set out in detail, both, in the application as
well as in the additional affidavit, how the application moved from one
department to the other, resulting in some delay in filing of the revision
application. He submitted that the applicant-CBI has shown sufficient
cause for condoning the delay.
ig He urged that the delay was neither
intentional nor deliberate and hence, the same ought to be condoned in the
interest of justice and the revision ought to be heard on merits. He relied on
certain judgments of the Apex Court in support of his submission to show
that the delay must be condoned when sufficient cause is shown.
4. Per contra, learned Counsel for the respondent Nos. 1 and 2
vehemently opposed the application seeking condonation of delay of 174
days in filing the revision application. He submitted that no sufficient
cause was shown by the applicant-CBI to condone the delay. According to
the learned Counsel for the respondent Nos. 1 and 2, the application
ex-facie lacks bonafides and the explanation offered was neither reasonable
SQ Pathan 3/11
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nor plausible. Learned Counsel submitted that the explanation offered by
the applicant, both, in the application as well as additional affidavit shows
that the applicant was not diligent in pursuing the application and that no
satisfactory explanation has been offered to show sufficient cause for
condoning the delay. He submitted that the Central Bureau of Investigation
(Crime) Manual 2005 prepared by the Government of India laying down
guidelines for the CBI department and their authorities for filing cases, has
not been complied with by the applicant, in letter and spirit. Learned
Counsel relied on several judgments of the Apex Court and other High
Courts and has also tendered a compilation of 19 judgments in support of
the submission.
5. Perused the papers. The respondent Nos. 1 and 2 were
prosecuted alongwith other co-accused, on a complaint lodged by the CBI
ACB, Mumbai, for the alleged offences punishable under Section 420 and
120-B of the Indian Penal Code and Sections 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act. The allegations against the respondent Nos.
1 and 2 was that the respondent Nos. 1 and 2 in connivance with the EPF
officials (A-1, A-2 and A-3) did not deduct the EPF contribution of 772
SQ Pathan 4/11
appr.424.13.doc
employees of respondent Nos. 1 and 2, during the period from May, 2005 to
August, 2006, thereby causing evasion in terms of wages totaling Rs.
22,83,367/- and further causing wrongful loss to the Government
Exchequer and corresponding wrongful gain to themselves.
6. According to the case of the prosecution, the respondent Nos. 1
and 2 were the Managing Director and Executive Director respectively, in
the company, M/s. A. L. L. Services Under 1 Roof (India) Pvt. Ltd. and
were responsible for making due deductions regarding EPF, ESIS and
Professional Tax from the salary of the employees. It is alleged that the
respondent Nos. 1 and 2 knowingly and in connivance with Shri Karkala
Shivaji Arya (A-1), Regional Commissioner-1, Employees' Provident Fund
Office, Bhavishya Nidhi Bhavan, Bandra (East), Mumbai, Shri Munnilal R.
Yadav (A-2), then Regional Commissioner and Shri Rajanikant (A-3),
Assistant Commissioner, Compliance, Employees' Provident Fund
Organization, Bhavishya Nidhi Bhavan, Bandra (E), Mumbai, conspired
with each other, and as such with their acts caused wrongful loss to the
employees to the tune of Rs. 1,10,74,015/- as also to the Government
exchequer, and corresponding wrongful gain to the establishment i.e. M/s.
SQ Pathan 5/11
appr.424.13.doc
A. L. L. Services Under 1 Roof (India) Pvt. Ltd. After completion of
investigation, charge-sheet was filed. Thereafter, the respondent Nos. 1 and
2 filed an application seeking their discharge from the said case. The
learned Special Judge, Mumbai, after hearing the parties was pleased to
discharge the respondent Nos. 1 and 2 herein, from the said case vide
judgment and order dated 11th January, 2013. Learned Special Judge,
however, rejected the discharge application of another co-accused which
has been also challenged by the said co-accused and is tagged along with
the aforesaid revision application.
7. Being aggrieved by the said order, the applicant-CBI filed the
aforesaid revision application alongwith an application seeking condonation
of delay of 174 days in filing the said revision application.
8. A perusal of the application seeking condonation of delay and
the additional affidavit filed by the applicant-CBI shows the movement of
the file. The additional affidavit gives further details of the movement of
the file. The reasons set out in the application and the additional affidavit
discloses sufficient cause for condoning the delay. The delay caused in
SQ Pathan 6/11
appr.424.13.doc
filing the aforesaid Revision is also neither deliberate nor intentional nor
malafide. There can be no dispute about the propositions laid down by the
Apex Court in this regard, i.e. with regard to what constitutes `sufficient
cause' and when delay can be condoned. However, each case will have to
be decided in the facts of that case, on the basis of the material placed
before the Court.
9. Learned Counsel for the respondent Nos. 1 and 2 has relied on
several judgments and there can be no dispute with regard to the same.
However, the question is, whether in the facts of this case, the applicant has
been able to show `sufficient cause' to condone the delay or not ? In my
opinion, the applicant has shown sufficient cause to condone the delay of
174 days in filing the aforesaid revision application. It may be noted that
the Apex Court in the case of Collector, Land Acquisition, Anantnag &
Anr. vs. Mst. Katiji & Ors.1, G. Ramegowda, Major & Ors. vs. Special
Land Acquisition Officer, Bangalore2 and State of Haryana vs. Chandra
Mani & Ors.3 has observed in Para 3 as under :
1 (1987) 2 SCC 107
2 (1988) 2 SCC 142
3 (1996) 3 SCC 132
SQ Pathan 7/11
appr.424.13.doc
"3. The legislature has conferred the power to condone
delay by enacting Section 5 (Any appeal or any application, other
than an application under any of the provisions of Order XXI of
the CPC, 1908, may be admitted after the prescribed period if the
appellant or the applicant satisfies the court that he had sufficient
cause for not preferring the appeal or making the application
within such period) 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 meaningful 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 condoned the highest that
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.
SQ Pathan 8/11
appr.424.13.doc
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.
Making a justice-oriented approach from this perspective, there
was sufficient cause for condoning the delay in the institution of
the appeal. The fact that it was the 'State' which was seeking
condonation and not a private party was altogether irrelevant.
The doctrine of equality before law demands that all litigants,
including the State as a litigant, are accorded the same treatment
and the law is administered in an even-handed manner. There is
no warrant for according a stepmotherly treatment when the
'State' is the applicant praying for condonation of delay. In fact
experience shows that on account of an impersonal machinery (no
one in charge of the matter is directly hit or hurt by the judgment
sought to be subjected to appeal) and the inherited bureaucratic
methodology imbued with the note-making, file-pushing, and
passing-on-the-buck ethos, delay on its part is less difficult to
understand though more difficult to approve. In any event, the
State which represents the collective cause of the community, does
not deserve a litigant-non-grata status. The Courts therefore have
to be informed with the spirit and philosophy of the provision in
the course of the interpretation of the expression "sufficient
cause". So also the same approach has to be evidenced in its
application to matters at hand with the end in view to do even-
handed justice on merits in preference to the approach which
scuttles a decision on merits. ........................"
10. It would also be apposite to refer to the decision of the Apex
Court in the case of G. Ramegowda, Major & Ors. vs. Special Land
SQ Pathan 9/11
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Acquisition Officer, Bangalore4, wherein, in Para 15, it is observed as
under :
"15. In litigations to which government is a party
there is yet another aspect which, perhaps, cannot be
ignored. If appeals brought by government are lost for
such defaults, no person is individually affected; but what,
in the ultimate analysis, suffers is public interest. The
decisions of government are collective and institutional
decisions and do not share the characteristics of decisions
of private individuals."
11.
Keeping in mind the aforesaid, I find that in the facts of the
present case, as noted earlier, the applicant-CBI has in its application and
additional affidavit shown `sufficient cause' for condoning the delay. There
is no gross negligence or deliberate inaction or lack of bonafides which can
be imputed to the applicant. It is not necessary to explain every day's delay.
A certain amount of latitude is not impermissible. Procedural delay is
incidental to the decision making process and is implicit in the very nature
of governmental functioning. Therefore, it is necessary to give due
recognition to these limitations in governmental functioning - ofcourse,
within reasonable limits. It is well settled that the expression `sufficient
cause' in Section 5 of the Limitation Act must receive a liberal construction,
4 (1988) 2 SCC 142
SQ Pathan 10/11
appr.424.13.doc
so as to advance substantial justice. For the aforesaid reasons, in the
interest of justice, the application is allowed and the delay of 174 days in
filing the aforesaid revision application is condoned. Application is
accordingly disposed of.
12. Criminal Revision Application to be listed for admission after
four weeks.
ig REVATI MOHITE DERE, J.
SQ Pathan 11/11
