Bombay High Court
Smt. Lalita W/O. Ganpati Manmode vs Sau. Swati W/O. Shri. Sunil ... on 31 August, 2021
Bench: V. G. Joshi
1 23 appa 492.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 492 OF 2019
Smt. Lalita w/o Ganpati Manmode
..vs..
Sou. Swati w/o Shri Sunil Karande
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri N.R. Bhishikar, Advocate for applicant.
Shri K.P. Sadawarte, Advocate for non-applicant.
CORAM : VINAY JOSHI, J.
DATED : 31/08/2021
Heard.
2. This is an application seeking condonation of
286 days delay caused in filing appeal along with an
application seeking leave to challenge the judgment
and order of acquittal passed in Summary Criminal
Case No.3030 of 2016 by Special Judicial Magistrate
First Class, Nagpur on 15.03.2018.
3. The applicant had filed criminal complaint for
alleged commission of offence punishable under
Section 138 of the Negotiable Instruments Act, for
dishonor of cheques of Rs.1 lakh and Rs.2 lakhs i.e.
total Rs.3 lakhs. Upon trial, it was held that the
applicant/complainant failed to establish the alleged
offence, hence, the respondent/accused was
acquitted.
2 23 appa 492.2019
4. The applicant while seeking condonation of
delay has canvassed the reason about issue of
ailments. It is pleaded that the applicant-lady is a
cancer patient and taking the treatment for years
together. In paragraphs 3 and 4 of the application, it is
stated that, the applicant has undergone major
surgery and she has taking radiation cycles. It is also
stated that though the applicant's husband is her
power of attorney holder, however, he was looking
after his ailing wife, therefore, he was not in a
position to take immediate steps. On this ground, the
applicant seeks for condonation of delay.
5. The respondent resisted this application by
filing reply-affidavit. It is stated that the applicant has
wrongly calculated the period of delay. According to
him, there is total 346 days delay in filing this
application. Besides that grounds canvassed for delay,
have been denied. In the alternative, it is submitted
that though the applicant took medical treatment in
past, still her husband, who has led evidence in Trial
Court would have taken timely steps for filing appeal.
6. The applicant has produced certain medical
papers to show that she was suffering from Cancer
and was taking treatment. By and large, it is a matter
on record that the applicant is a Cancer survivor. The
question is whether the applicants' husband was in a
position to take immediate steps for filing appeal.
Always, in line of decisions Hon'ble Supreme Court
3 23 appa 492.2019
and this Court has expressed that while considering
the application for condonation of delay, the Court
shall adopt liberal approach. Unless, otherwise is
shown, the caused canvased for delay cannot be
suspected. It is apparent that the applicant-lady was
suffering from Cancer and was taking treatment.
Instead of throwing the cause on technicalities, always
it would be in the interest of justice to get the lis
decided on merits. Certainly, there are some lapses on
the part of the applicant to take assiduous steps. In
case of allowing this application, certainly, the other
side would require to face one more round of
litigation.
7. Having regard to these facts, delay can be
condoned by imposing certain costs to reimburse the
other side. Hence the following order :
(a) The application stands allowed subject to
costs of Rs.10,000/- to be paid to other side within
two weeks from the date of this order.
(b) Deposit of costs amount in this court, would
amounts to sufficient compliance of this order. On
deposit of costs amount, delay stands condoned and
matter be proceeded further.
8. Application stands disposed of accordingly.
JUDGE
Trupti
