Bombay High Court
Ajay S/O Maheshkumar Dixit vs Ashok S/O Hiralal Baisware on 17 February, 2025
2025:BHC-NAG:1919
12.revn.127.2024.Judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION APPLICATION NO.127 OF 2024
Ajay s/o Maheshkumar Dixit,
Aged about 58 Years,
Occupation : Service,
R/o Jain Mandir Ward,
Hinganghat, District Wardha. ..... APPLICANT
// VERSUS //
Ashok s/o Hiralal Baisware,
Aged about 68 Years,
Occupation : Retired,
R/o Shivaji Ward, Hinganghat,
District Wardha. .... NON-APPLICANT
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Mr. Tejas S. Deshpande, Counsel for the Applicant.
Mr. R. A. Bhandakkar, Counsel for the non-applicant.
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CORAM : URMILA JOSHI-PHALKE, J.
DATED : 17.02.2025
ORAL JUDGMENT :
1. By this revision application, the applicant has challenged
the order passed by the learned Additional Sessions Judge (Court
No.2), Hinganghat, rejecting the application of condonation of delay
which is caused in preferring the appeal against the conviction for
the offence punishable under Section 138 of the Negotiable
Instruments Act (for short 'N.I. Act'), vide Judgment dated
15.03.2024 in S.C.C. No.17/2020.
2. The applicant was prosecuted for the offence punishable
under Section 138 of the N.I. Act. As there was a transaction
12.revn.127.2024.Judgment.odt
between the applicant and non-applicant. Towards the legal and
enforceable debt as alleged, he has issued a cheque bearing
No.190502 dated 22.11.2019 for a sum of Rs.40,000/-. The said
cheque was presented, but it was returned back as 'insufficient
funds'. After issuing the notice, the non-applicant has filed a
complaint under Section 138 of the N.I. Act. The non-applicant has
also adduced the evidence and after appreciation of the evidence,
the learned Judicial Magistrate First Class, Court No.3, Hinganghat
convicted the present applicant to undergo simple imprisonment for
11 months and pay Rs.80,000/- to the non-applicant towards
compensation, in default the applicant to suffer simple
imprisonment for a period of three months.
3. Being aggrieved and dissatisfied with the said Judgment,
the applicant preferred an appeal, but there was a delay of 77 days
caused in preferring the appeal, therefore, he filed an application for
condonation of delay. The application for condonation of delay was
filed on the ground that on account of communication gap between
himself and his Counsel and there was summer vacation and
therefore, he could not file an appeal within time, and therefore,
delay of 77 was caused and it be condoned.
4. Learned Additional Sessions Judge, after considering the
reply filed by the respondent/non-applicant, rejecting the
12.revn.127.2024.Judgment.odt
application on the ground that there is no sufficient and satisfactory
reason for condonation of delay.
5. Being aggrieved and dissatisfied with the same, the
present revision is filed by the applicant on the ground that learned
Additional Sessions Judge has not considered that there is a
sufficient and reasonable cause for condonation of delay. The
applicant is a layman who is not aware about the legal provisions.
Moreover, the learned Additional Sessions Judge ought to have
considered that filing of appeal against the order of conviction is a
fundamental right, guaranteed to the applicant under Article 21 of
the Constitution of India and the learned Additional Sessions Judge
has taken a technical view which restrains and also violates the
fundamental right of the present applicant. In view of that, the
application deserves to be allowed and the order passed by the
learned Additional Sessions Judge deserves to be quashed and set
aside.
6. Heard learned Counsel for the applicant who supported
the said contentions as per the contention raised in the application,
whereas the learned Counsel for the non-applicant strongly opposed
the said application on the ground that the discretion is used by the
learned Additional Sessions Judge in a proper manner. There
should be a reasonable and satisfactory reason for the condonation
of delay, and therefore, the application deserves to be rejected.
12.revn.127.2024.Judgment.odt
7. After hearing both sides and on perusal of the entire
record, it reveals that the delay condonation application is rejected
only on the ground that there is no reasonable and justifiable
reason for condonation of delay. Admittedly, the applicant was
convicted on 15.03.2024. He made an application for suspension of
sentence which came to be allowed and the sentence was
suspended for 30 days. The application filed on 27.06.2024
however, it was actually filed on 29.06.2024. There has been delay
of 77 days. The application shows the reason that there was
miscommunication between the Counsel and the applicant and there
was a summer vacation, and therefore, he could not file an appeal.
Admittedly, the law is settled on the aspect that there should be
reasonable and satisfactory reasons for the condonation of delay.
However, the law is also settled that while considering the delay
condonation application, the liberal approach is to be taken and not
the pedantic approach. The parties are allowed to fight the
litigation on its own merits. In a criminal matter, where the life and
liberty of a person is in question, one's right of appeal has always
been accepted and an appropriate steps must be taken to effectuate
that right. The considerations on account of delay and limitation
ought not to be considered to deny the right of the appeal in
hearing an accused. Admittedly, the applicant was directed to
deposit the amount of Rs.80,000/- while convicting him. The
applicant has dragged the non-applicant in unnecessary litigation
12.revn.127.2024.Judgment.odt
and he has to incur some expenses towards the said litigation and
therefore, the applicant shall at least deposit 50% of the
compensation amount within four weeks before the trial Court and
the non-applicant is at liberty to withdraw the same. In view of
that, I proceed to pass following order:
ORDER
(i) The revision application is allowed.
(ii) The order passed by the learned Additional Sessions
Judge, (Court No.2), Hinganghat in Other Misc. Criminal
Application No.13/2024 is hereby quashed and set aside.
(iii) The delay of 77 days is hereby condoned.
(iv) The parties to appear before the Additional Sessions
Judge, (Court No.2), Hinganghat on 10.03.2025.
(v) The applicant shall deposit the amount of Rs.40,000/-
within four weeks before the trial Court.
(vi) On failure of depositing the amount, the order passed
by the learned Additional Sessions Judge (Court No.2),
would survive.
The revision application is disposed of.
(URMIL A JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 26/02/2025 17:31:15
