Shri. Sanjay S/O. Gunwant Band vs Krunal Rajendra Ladikar And ...
2017 Latest Caselaw 5753 Bom

 apl.702.16                                      1        

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

         CRIMINAL   APPLICATION (APL)  NO.  702  OF 2016

  Shri Sanjay S/o Gunwant Band,
 Age 53 years,Occ-Business,
 R/o Plot No.10, near Mahalaxmi Mandir,
 Jaiprakash nagar,Nagpur-25.                                            .....  APPLICANT

       ...V E R S U S...

  1. Krunal Rajendra Ladikar,
     Age 30 years,Occ-Business,

 2. Vijay Kanshiram Bangde,
    Age-30 years,Occ-Business,

 3. Smt.Sangita Vilas Ladikar,
    Age 42 years,Occ-housewife,

 4. Vilas Ramchandrarao Ladikar,
    Age-46 years, Occ-Private

      All R/o Plot No.A, Dr.Khankhoje
      nagar, Ladikar Layout,Manewada Road,
      Nagpur-25.

 5. State of Maharashtra,
      Through its Police Station Officer,
      Police Station Hudkeshwar,Nagpur.           ... RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri R.R. Srivastava,Advocate for applicant.
 Shri M.P. Totey, Advocate for respondent nos. 1 to 4.
 Shri V.P.Gangane,A.P.P.for State-respondent no.5.
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- AUGUST 8,2017 ORAL JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally

by consent of learned counsel for the parties.

2] The present application under Section 482 of Code of

Criminal Procedure is filed by the present applicant whose

application for condonation of delay filed under Section 5 of the

Limitation Act, is rejected by the learned Revisional Court.

3] Heard learned advocate Shri R.R.Srivastava for the

applicant and Shri M.P.Totey learned advocate for the respondent

nos. 1 to 4 with Shri S.D.Mohod, learned advocate and also Shri

V.P.Gangane, learned A.P.P. for State-respondent no.5.

4] The respondent nos. 1 to 4 filed a private complaint

against the present applicant and other accused persons under

Section 200 of Code of Criminal Procedure that the present

applicant and other accused persons have committed offence

punishable under Sections 420,448,464,465,467,468,471,107,

120-B and Section 34 of the Indian Penal Code. The said

complaint was registered as Regular Criminal Complaint

No.975/2010.

5] The learned Judicial Magistrate First Class(Corporation

Court No.1),Nagpur on 16/2/2013 issued process against the

present applicants and other accused persons for the offence

punishable under Section 420 r/w Section 34 of the Indian Penal

Code only.

6] The applicant preferred a criminal revision before the

learned Revisional Court challenging the order dated 16/2/2013

of issuance of process. The said revision was barred by limitation,

therefore applicant filed an application for condonation of delay

under Section 5 of the Limitation Act. The said application for

condonation of delay was registered separately as Misc.Cri.

Application No.1289/2015.

7] The said was contested by respondent nos. 1 to 4 and

said is rejected by the impugned order.

8] It is not in dispute that on 16/2/2013 the order of

issuance of process is passed by the learned Magistrate. In

pursuance to the said order of issuance of process summons were

taken to serve upon the applicant and other accused persons. It is

also not in dispute that summons was served upon the applicant

on 15/3/2014. In the proceeding before learned Revisional Court

an affidavit is filed by one Advocate Shri Vaibhav S/o Manaklal

Heda that he was instructed by the present applicant to put his

appearance before the learned Magistrate. As per the affidavit

filed by learned advocate Shri Vaibhav Heda on 23/4/2014 he

appeared before learned Magistrate in first half and for his other

professional work he could not remain present before learned

Magistrate in the second half. Consequently, the learned

Magistrate on 23/4/2014 issued bailable warrant against present

applicant to procure his presence in the proceeding. Said bailable

warrant was executed on the applicant on 16/4/2015. Consequent

to that as per date the present applicant appeared before learned

Magistrate on 27/4/2015 and he was released on bail by learned

Magistrate.

9] On 19/5/2015 the present applicant filed revision

before the learned Revisional Court alongwith application for

condonation of delay. From the record, it is clear that the delay

will be about two years from the date of the order of issuance of

process,however the said date cannot be considered since till

15/3/2014 it was not within the knowledge of the present

applicant that the order of issuance of process is passed by the

learned Magistrate and the said order alongwith summons of the

criminal case was served on 15/3/2014. Thus, the reckoning of

limitation will start from 15/3/2014 from the said date after said

revision is barred. In view of the Article-131 of the Limitation Act

it was expected from the applicant if he wish to challenge the said

order by preferring a revision within a period of 90 days.

However, during that period of limitation the revision was not

filed and it was filed on 19/5/2015. Thus, there will be a delay of

11 months to set up the challenge against the order of issuance of

process.

10] The applicant has given reason as to why the applicant

could not approach before the learned Revisional Court within a

prescribed period of limitation. The learned Revisional Court has

rejected the said application if the impugned order is perused by

taking a too technical view.

11] A litigant cannot deny the opportunity to challenge the

order by filing appropriate proceedings and if the said proceedings

are barred by limitation the application for condonation of delay is

required to be decided sympathetically. It is a trait of law that

liberal construction has tobe given so as to advance substantial

justice. The Court should not shut the litigants from approaching

to the Court on the ground that his case is barred by limitation.

Further, no prejudice that will cause to the complainants if the

application is granted since the respondents-complainants will

have opportunity to point out before the learned Revisional Court

that the order impugned in the revision i.e. issuance of process is

passed by learned Magistrate after considering the statement of

facts asserted in the complaint and the documents filed on

record after which learned Magistrate has expressed his view that

a case is made out for issuance of process. However, at the outset,

the revision applicant ought not to have been shunted out.

12] In that view of the matter, I allow the present

application. Hence, the order.

ORDER

I) The order passed by learned Additional Sessions Judge-

9,Nagpur in Misc.Criminal Application No.1289/2015 dated 14/9/2016 is hereby quashed and set aside.

II) The application for condonation of delay filed by the present applicant bearing Misc.Criminal Application No.1289/2015 is hereby allowed.

III) The delay caused for filing the revision is condoned.

IV) The learned Revisional Court is directed to register the revision and decide the said revision within a period of three months . It is made clear that the present applicant shall not try to protract the hearing of the revision.

V) The application is allowed with subject to costs of Rs.

5000/- to be deposited with High Court Bar Association, Nagpur within a period of one week.

VI) The learned Revisional Court shall register the revision only on filing of receipt issued by High Court Bar Association,Nagpur showing the payment of costs.

VII) The parties are directed to appear before the learned Revisional Court on 21/8/2017 and from the said date within a period of three months the Court should decide the revision.

With this, Rule is made absolute.

JUDGE

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