Fuelco Coal (I) Ltd. Thr. Its ... vs M/S Black Diamond Sales ...
2022 Latest Caselaw 6023 Bom

                                                         1                             23.APPA.261-2020.odt




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

                CRIMINAL APPLICATION (APPA) NO. 261 OF 2020
          ( Fuelco Coal (I) Ltd., Thr. Its Authorized Signatory
                   Navalkishor S/o Ganpatlal Agrawal
                                    Vs.
   M/s Black Diamond Sales Corporation, Thr. Its Proprietor/Authorized
                Signatory Mr. Garvit R. Agrawal & Anr. )

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. Arjun Raoka, Advocate for the Applicant/Appellant.
                                  Mr. H.R. Gadhia, Advocate h/f Mr. R.I. Thanvi, Advocate for the
                                  Non-Applicants/Respondents.



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 29th JUNE, 2022.

Heard Mr. Raoka, learned counsel for the applicant, on the application for condonation of delay. Certain facts are necessary which are as under:

2. The proceedings were instituted by the applicant who is the original complainant under Section 138 of the Negotiable Instruments Act, on 21.09.2006, in respect of two cheques dated 12.07.2006 and 14.07.2006 which were dishonoured on 24.07.2006. The complaint came to be dismissed by an order dated 31.12.2012 on the ground, that the complainant had not taken proper steps for service upon the accused (page 18). Nothing was done thereafter till 07.09.2018 when the order of dismissal of the complaint dated 31.12.2012 came to be 2 23.APPA.261-2020.odt

challenged by way of revision with an application for condonation of delay, which application came to be allowed by an order dated 18/19.07.2019 by imposing a costs of Rs. 10,000/-. The order dated 18/19.07.2019 came to be challenged before this Court in Criminal Writ Petition No. 813/2019 and by the judgment dated 12.03.2020, the same was set aside on the ground, that the revision itself was not maintainable and the complainant was stated to be at liberty to take necessary steps as may be adviced in accordance with the provisions in law within a period of two weeks and in case such proceedings were taken, the aspect of delay will be considered independently on its own merits. Thereafter, the present appeal has been filed with the application of condonation of delay.

3. Insofar as, the delay from 07.09.2018, the date of filing of the revision alongwith the application of condonation of delay and the judgment dated 12.03.2020 in Criminal Writ Petition No. 813/2019 is concerned, the provisions of Section 14 of the Limitation Act, may be available to the applicant. However, what is material to note, is whether any plausible explanation has been offered for delay of more than 6 years from 31.12.2012 when the complaint was dismissed till 07.09.2018 the date of filing of the revision. A perusal of the application indicates, that the only reason which is given is reflected in para 7 of the application that since the erstwhile counsel had stated that the non-applicant No.2 had absconded, an enquiry was made in the month 3 23.APPA.261-2020.odt

of January 2018 and the non-applicant No.2 was seen by the Officer of the Company in Bilaspur and his address was ascertained. Thereafter, an enquiry was made with the erstwhile counsel who is claimed to have stated that the matter was kept sine die and because of non intimation, the delay had occasioned. That is the only extent of the explanation coming forth for the delay for the aforesaid period.

4. Mr. Raoka, learned counsel for the applicant submits, that a sympathetic view needs to be taken, considering the fact that the applicant Company was not intimated regarding the progress of the proceedings by the erstwhile counsel which has resulted in delay. He placed reliance upon Angad S/o Nagnathrao Kathale Vs. Kishan S/o Baburao Suryawanshi, 2013 (2) AIR Bom R 182, Prakash S/o Budha Balbudhe Vs. Dinesh S/o Baburao Madavi, 2012 (1) BCR (Cri) 351, State Bank of India Vs. Prakash Rukman Patra, 2010 (1) Mh.L.J. 852 , Rafiq Vs. Munshilal, 1981 (2) SCC 788 and M.P. Steel Corporation Vs. Commissioner of Central Excise, (2015) 7 SCC 58.

5. Mr. Gadhia, learned counsel appearing for the non-applicants, opposes the application and submits, that there is absolutely no plausible reason given by the applicant for condonation of dealy and relying upon Lingeswaran ETC. Vs. Thirunagalingam, 2022 LiveLaw (SC) 227 submits, that the application needs to be rejected.

4 23.APPA.261-2020.odt

6. The factual position narrated above would indicate, that the complaint came to be dismissed on 31.12.2012 and revision was filed for the first time challenging the said order on 07.09.2018 with an application for condonation of delay. A perusal of the application indicates, that the only reason which is given for condonation of delay for the aforesaid period is spelt out in para 7. In my considered opinion, it is not permissible for a party, to merely throw the blame upon the counsel for any delay or for that matter to say that it is the duty of the counsel to intimate the party regarding the progress of the proceedings as there is an equal duty upon the party to be aware and abreast of the stage of the proceedings. The order sheet would indicate, that from 2006 when the complaint was filed till 31.12.2012 when the complaint was dismissed, the applicant had been unable to serve the non-applicant No.2. Though a plea is raised regarding the non-applicant No.2 not being available at the address in question, however a perusal of the complaint would indicate, that the address of the accused as given in the complaint and the address of the accused in the application for condonation of delay, upon which, he has been served is the same which would indicate, that the accused No. 2 was residing throughout this period on the same address. The accused No.1 is merely a proprietorship concern of the accused No. 2. Inspite of securing a Non Bailable Warrant time and again as indicated from the perusal of the order sheet, it is rather strange as to why the non-applicant No.2, who was residing on the same address could not be 5 23.APPA.261-2020.odt

served. This clearly indicates a total apathy and callousness on part of the complainant/applicant in taking appropriate steps for service of notice upon the accused No.2 even when the proceedings were pending from 2006 to 2012, a period of 6 years.

7. The reasons which are given for seeking condonation of delay as are spelt out in para 7, merely indicate, that the counsel who was engaged had failed to inform the progress of the trial on the ground that the accused/non-applicant No.2 had absconded and the proceedings adjourned sine die which can never be a stage in a proceeding under Section 138 of the Negotiable Instruments Act. There is also a position, that inspite of this reason attributed to the counsel, which is found to be incorrect, no action was taken under the Advocates' Act against the said counsel, which would further indicate, that there is no substance or merit in the said reason. Though, reliance is placed upon Angad S/o Nagnathrao Kathale (Supra), the delay therein was approximately a period of two years; in Prakash S/o Budha Balbudhe (Supra), the delay was of a few months; in State Bank of India (Supra), the delay therein was approximately a period of two years and the reasons given to condone the same were found to be plausible. Though, in Rafiq (Supra) the Hon'ble Apex Court has held that the parties are not to suffer for misdemeanor of the counsel, for non filing of the affidavit the factual position would indicate that it sworn on 29.10.2018 and was not presented to the Court till November 2018, and 6 23.APPA.261-2020.odt

therefore, on facts all these judgments are not attracted, considering the quantum of delay and the explanation which was found to be acceptable therein. It is trite position of law, that there cannot be any fixed parameters for consideration of an application for condonation of delay and the exercise of discretion under Section 5 of the Limitation Act, is based upon the facts prevailing in each case depending upon a satisfactory explanation for the delay which is acceptable to the Court. M.P. Steel Corporation (Supra) is on the applicability of Section 14 of the Limitation Act and since the delay for the duration from 07.09.2018 to 12.03.2020, when proceedings were pending before the Court is not been taken into consideration, the same would have no applicability. In my considered opinion, what has been held in Lingeswaran ETC. (Supra), is material, which is reproduced as under:

"5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay 7 23.APPA.261-2020.odt

would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of Popat Bahiru Goverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same."

8. It is therefore apparent, that there is no reasonable or proper explanation for the delay between the period 31.12.2012 and 07.09.2018, considering which, I do not find any reason to condone the delay as the fact position on record indicates callousness on part of the complainant in respect of the proceedings initiated by the complainant. A complainant who sets in motion a criminal law cannot be heard to say that once the process is set in motion he has no responsibility to be abreast of the proceedings for the reasons that the process requires the presence of the complainant from time to time at various stages. Even when the presence of the complainant is not required in the Court, it may be so required at the Office of the counsel so as to ensure that 8 23.APPA.261-2020.odt

the proceedings go ahead in the matter of service upon the accused and specifically in the present case when a Non Bailable Warrant was secured and hamdust was taken which could not have been reached to the Police Station within the jurisdiction of which the accused No. 2 resided which was at Bilaspur, without the assistance of the complainant. That being so, I do not find any merit in the application, the same is accordingly rejected with no order as to costs.

JUDGE SD. Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:30.06.2022 17:01