Bombay High Court
Nitin Rasiklal Gaglani And Others vs Ms Chimote Medical Institute on 6 August, 2024
55.appa.1275.23.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO.1275 OF 2023
(Nitin Rasiklal Gaglani and ors. Vs. M/s. Chimote Medical Institute and anr.)
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. R.N. Badhe, Advocate for the appellants.
Mr. V.S. Giramkar, Advocate a/w Mr. K. Jain, Advocate for respondent No.2.
CORAM:- URMILA JOSHI-PHALKE, J.
DATED :- AUGUST 6, 2024
By this application, the appellants are seeking
condonation of delay which is caused in preferring the
appeal against the judgment and order of acquittal dated
18/05/2023 passed by the Judicial Magistrate First Class,
Court No.3, Amravati. As per the contention of the
appellants he had filed the complaint under Section 138 of
the Negotiable Instrument Act, 1881. The judgement was
delivered by the learned trial Court on 18/05/2023 of
which the certified copy was applied on 24/05/2023 and
he received the certified copy. He has to file the appeal on
or before 30/08/2023. However, as the case involves the
dishonour of cheque wherein two identical matters were
typed together and there was a mistake committed on the
part of the learned Advocate who appeared on behalf of
the complainant by way of which the learned Advocate
tagged the documents of one case in the other case and
laid the evidence which support of such document which
eventually laid to the dismissal of the case. It is further
contended that as he was not properly advised by the
learned Counsel, therefore, he could not file appeal within
time, and therefore, delay is caused.
2. Said application is strongly opposed by the
respondents on the ground that the delay is not properly
explained. Moreover, when the allegations are made
against the concern Advocate, the concern Advocate is a
necessary party for the said application. In view of that, he
prays for the rejection of the application. In support of his
contention he placed reliance on the Kanta alias Shanti
w/o Subhash Karkale Vs. Manjulabai alias Kholki w/o
Haribhau Tarare and anr. [2020 (1) Mh.L.J. 918].
3. Heard learned Counsel for both the parties. As
per the contention of the appellants as it was his Counsel
who has not advised him properly and because of his
negligence the complaint was dismissed, and therefore,
delay is caused. It is true that it is very easy for a litigant
to make allegations against an advocate behind his back.
If the applicant wishes to make allegations against the
advocate, the applicant should have a courage to join the
advocate as a party and in his presence should make
allegation against him. Here, the applicant has made
allegation against the advocate. At the same time, it is
apparent that there is a delay of 101 days is caused.
Admittedly, the litigants are not expected to know the
legal provisions as to the limitation and when to file the
appeal therefore, they are dependent upon their Counsel.
It is also well settled that while considering the delay
application the liberal approach is to be taken and not the
pedantic approach. Considering the reasons mentioned in
the application which is a possible reason and the delay is
properly explained. Hence, the application is liable to be
allowed subject to the costs of Rs.3000/-. The costs be
paid to the respondents, within a period of one week.
4. Hence, the application is allowed and the
delay is condoned.
5. The application is disposed of.
CRIMINAL APPLICATION (ST.) NO.9784 OF 2023
On payment of the costs, the application for
leave to file be registered.
2. On registration of the application, issue notice
to the respondents, returnable after four weeks.
3. Mr. Giramkar, learned Counsel for respondent
No.2 waives notice.
4. The copy of the application for leave to file
appeal along with the appeal memo be furnished to the
other side.
(URMILA JOSHI-PHALKE, J.)
*Divya
