Bombay High Court
Ramnarayan Hariprasad Jaiswal vs Alkesh Kamal Narayan Jaiswal on 30 March, 2017
Bench: S.B. Shukre
J-cwp130.16.odt 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.130 OF 2016
Ramnarayan Hariprasad Jaiswal,
Aged about 73 years,
Occupation : Agriculturist and Business,
R/o. Paratwada, Tahsil Achalpur,
District Amravati. : PETITIONER
...VERSUS...
Alkesh Kamal Narayan Jaiswal,
Aged about 46 years,
Occupation : Business,
R/o. Chota Bazar, Paratwada,
Tahsil Achalpur,
District Amravati. : RESPONDENT
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Shri K.B. Zinjarde, Advocate for the Petitioner
Shri S.D. Harode, Advocate for the Respondent.
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CORAM : S.B. SHUKRE, J.
DATE : 30 th
MARCH, 2017.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. Heard finally by consent.
3. On going through the first impugned order dated 2.11.2012, I
find that the entire order rests upon misconception of facts which are
J-cwp130.16.odt 2/3
otherwise clearly available on record. Learned Judicial Magistrate in
paragraph 8 of this impugned order has reasoned that it is not the case of
the petitioner that the uncle of Advocate Shri Khojre was not ill and did
not pass away. On the contrary, say filed by the petitioner to the
application for condonation of delay clearly reveals that it is the specific
case of the petitioner that the uncle of Advocate Shri Khojre was not ill
and did not pass away. This is evident from the submission made in
paragraph 3 of the say filed to application of condonation of delay.
Then, there was only a word against word and, therefore, it was
necessary for the trial Court to have considered whether the explanation
given by the respondent that the uncle of Advocate Shri Khojre was ill
during the relevant period and he also died during the same period could
be accepted or not by applying settled principles of law. It is worth
mentioning here that nowhere in the proceedings initiated for
condonation of delay in filing the complaint for dishonour of cheque,
Advocate Shri Khojre has filed any affidavit on record to support the
contention that his uncle was ill during some period of time. It was also
not the case of the petitioner that he has personal knowledge about
illness of uncle of Advocate Shri Khojre and also about his death owing to
the illness. One does not know what was the source of information of
the respondent about illness and death of uncle of Advocate Shri Khojre
and in the absence of any such source of information having come on
J-cwp130.16.odt 3/3
record, it is doubtful if the contention that the uncle of Advocate Shri
Khojre was ill and died due to illness could have been accepted by the
trial Court according to law. All these facts and circumstances of the
case, it appears have not been considered, rather considered in favour of
respondent by wrongly assuming something which did not exist on
record, by the trial Court. Same mistake has been repeated by the
revisional Court.
4. In the circumstances, I find that the first impugned order
dated 2.11.2012 and also the second impugned order dated 19.1.2016
respectively passed by the trial Court and the revisional Court are
perverse and also against well settled principles of law calling for
interference in exercise of extraordinary jurisdiction by this Court.
5. The writ petition is, therefore, allowed.
6. Both the impugned orders are quashed and set aside.
7. The matter is remanded back to the trial Court for
considering the application for condonation of delay afresh in accordance
with law.
8. Rule is made absolute in these terms.
JUDGE
okMksns
