Credential Leasing And Credits ... vs Shruti Investments And Anr.
2004 Latest Caselaw 1084 Del

JUDGMENT

R.C. Chopra, J.

1. Crl.M.No.1740/2003 is an application under Section 5 read with Section 14 of the Limitation Act, 1963, (hereinafter referred to as `the Act' only) for condoning the delay in the filing of the leave to appeal against acquittal. Crl.M.No.1742/2003 is an application under Section 378(4) of the Code of Criminal Procedure (hereinafter referred to as `the Code' only) for leave to appeal against the order dated 30th August, 2000 by which a complaint under Section 138 of the Negotiable Instruments Act was dismissed in default.

2. The facts relevant for the disposal of both these applications briefly stated are that the appellant had filed a complaint under Section 138 of the Negotiable Instruments Act against the respondents which was dismissed in default by learned M.M. on 30th August, 2000. when none appeared for the appellant/complainant. The respondent, however, was present. The appellant filed an application before the learned M.M. For recall of dismissal order which was declined by him on 9th September, 2000, holding tha he had no powers to review the order. Thereafter, the appellant filed a revision petition before the learned A.S.J. which was dismissed on 13th February, 2001 holding that the revision was not maintainable. Thereafter, the appellant filed a petition ander Section 482 of the Code on 23rd March, 2001 for setting aside the orders passed by learned A.S.J. This petition was dismissed by the High Court on 8th November, 2002, holding that the order passed by the learned A.S.J. dismissing the revision filed by the appellant/petitioner could not be faulted and as such there were no good grounds for interfering with the said order. Thereafter, the appellant filed a Special Leave Petition in the Supreme Court of India which was withdrawn with the leave to have recourse to appropriate remedy of filing an appeal against the order of the learned M.M.

3. In the application (Crl.M.No.1740/2003) under Section 5 read with Section 14 of the Limitation Act, 1963, the appellant has prayed for condensation of delay in the filing of the leave to appeal application on the ground that the appellant was under a bonafide belief that he was pursuing the right remedy and as such it should not be penalised. It is submitted that the counsel engaged by the appellant moved on a wrong track under bona fide understanding of law and the matter was taken up to Supreme Court of India and as such the delay which occurred on account of the wrong advice of the counsel falls within the ambit of sufficient cause for condensation of delay. It is also submitted that the appellant gained nothing by pursuing a wrong remedy and in fact suffered a lot under a bona fide belief that it was pursuing the right remedy.

4. The respondent has opposed this application and has pleaded that the negligence of lawyer cannot provide a 'sufficient cause' for condensation of delay as it cannot be held that the appellant was acting in good faith. It is also argued that Section 5 of the Limitation Act is applicable to Civil Suits and Civil Appeals only and is not applicable to an application under Section 378(4) of the Code.

5. Learned counsel for the appellant in support of his prayer for condoning the delay in the filing of the appeal has relied upon the judgments in Narayandas s/o Gulabchand Agrawal v. Rakesh Kumar s/o Nem Kumar Porwal; reported in 1996 Crl.L.J.29, Haryana State Board for Prevention and Control of Water Pollution, Chandigrarh v. M/s. Jai Bharat Wollen Furnishing Works, Panipat and others; reported in 1993 Crl.L.J.384 and The State v. Chhinga and others; reported in 1982 Crl.L.J.885. On the other hand, leaned counsel for respondents relies upon the judgments in Babu Ram v. Devinder Mohan Kaura and others; reported in AIR 1981 Delhi 14, Rabindra Nath Samuel Dawson v. Sivakami and others; , Smt. Sharda Devi v. Murari LaVaid; reported in 1978(1) RLR 315, Gnanadurai v. Suseelammal; , Jagmohan Tewari v. Mahadeo Prasad and others; reported in AIR 1932 Oudh 220, and Firm Hemraj Dhannalal v. Ambaram Bhawaniram Surajmal; .

6. After perusing the judgments cited above and the provisions of Section 5 read with Section 14 of the Limitation Act, 1963 this Court finds that the provisions of the Act are applicable to Criminal Appeals also filed under Section 378 of the Code. The Supreme Court in the case of Mangu Ram Vs. MCD (supra) clarifed that the Limitation Act of 1963 had made an important departure from the Limitation Act, 1908, which had excluded the applicability of Section 5 thereof to the limitation prescribed for suits appeals, applications etc. It was also held that where an application for special leave to appeal from an order of acquittal is filed after coming into force of Limitation Act, 1963, Section 5 would be available to the applicant if he can show sufficient cause for not preferring the application within the time limit. Therefore, the contention of learned counsel for the respondent that Sections 5 and 14 of the Limitation Act, 1963, are not applicable to a criminal appeal cannot be sustained.

7. The question as to whether an applicant applying for condensation of delay has made out sufficient cause or not for condoning the delay and particularly in a case where a litigant acting on legal advice has been pursuing a wrong remedy has been considered in many cases by the superior Courts. Good faith as defined in Section 2(h) of the Limitation Act, 1963 for entitlement to benefit of Section 14 of the Act was considered by the Apex Court in the case of Rabindra Nath Samuel Dawson v. Sivakami and othrs (supra) and it was held that the benefit of Section 14 of the Limitation Act, 1963 can be given to a party who has been prosecuting with due diligence another proceeding. Filing a suit in a Court, which on account of defect of the jurisdiction or for other cause of like nature was unable to entertain it was not held to be a good ground in view of the fact that the objection to the maintainability of the suit had been taken at very initial stage and as such, it was not a case of prosecuting the previons proceedings in good faith. It was held that the proceedings were not in ignorance of law or bonafide mistake. The definition of Section 2(h) itself say that nothing shall be deemed to have been done in good faith which is not done with due care and caution and as such, it has to be seen as to whether the applicant was prosecuting a wrong remedy in good faith or not.

8. In the cases of Firm Hemraj Dhannalal v. Ambaram Bhawaniram Surajmal and Jagmohan Tewari v. Mahadeo Prasad and others (supra) it was held that mistake of law does not entitle a party to the benefit of Section 14 read with Section 5 of the Act because ection 14 does not help a person who is guilty of negligence, latches, inaction or bad faith. In the case of Babu Ram v. Devinder Mohan Kaura and others , a learned Single Judge of this Court had taken the view that the mistaken advice of a counsel could not constitute either sufficient cause within the meaning of Section 5 or evidence of good faith within the meaning of Section 14. However, it was added that the basis of mistaken advice should be disclosed to enable the Court to see whether the advie tendered was bonafide or reckless. Similarly, in the case of Smt. Sharda Devi v. Murari Lal Vaid (supra) learned Single Judge of Punjab and Haryana High Court relying upon a judgment in Sarmesh Singh Vs. Chaman Singh reported in AIR 1960 Punjab P-52 held that the party praying for condensation of delay has to show that the counsel had acted in good faith, i.e., with due care and caution and the material must be placed before the Court from which it is possible to deduce that the counsel was acting in good faith. In the said case, the mistake of counsel was not held to be in good faith on the ground that every counsel appearing in District Courts should know the powers vested in the Senior Subordinate Judge and District Judge and if the suit is not instituted in the Court of lowest jurisdiction, the act of filing the suit in a Court which has no jurisdiction, cannot be treated as bonafide. In the case of Gnanadurai v. Suseelammal (supra), the Madras High Court also took the view that an appeal which is not maintainable, cannot provide a ground for condensation of delay as such an action cannot be taken as an action taken in good faith. Thus, the law laid down by the different Courts as well as the Apex Court leaves no room for doubt that Section 5 read with section 14 of the Limitation Act, 1963 comes to the rescue of a litigant only if it is shown that the remedy being prosecuted in some other Court was in good faith, i.e., with due care and caution and it was bonafide believed by the counsel a well as party that the remedy being pursued was a proper remedy.

9. Coming to the question as to whether there are good and sufficient grounds or not for condoning the delay in the filing of the leave to appeal application in hand, this Court finds that right after dismissal of his complaint in default on 30th August, 200, the appellant has been taking steps to challenge the said order so that his complaint may be restored. Not only that the application for recall was filed before learned M.M. and a revision was filed before learned A.S.J., the petitioner filed a Section 482 Cr.P.C petition even before the High Court and went up to Supreme Court in SLP. It is, therefore, an illustrative case of vigorously pursuing a wrong remedy under the advice of a counsel for which the party not only spent money but wasted lot of is time and energy also. Had the appellant been advised initially itself that the proper remedy was to file an appeal against acquittal, the appellant would not have ventured into filing of the various petitions and SLP and would have straightway filed a appeal against acquittal which has been done now after about three years of the dismissal of the complaint. The law is well-settled that negligence does not provide sufficient cause for condensation of delay but where a litigant has been acting on the bona fide advice given by a Counsel who believes that his advice is proper, it has to be held that they were acting bona fide and in good faith. Suggesting of a wrong remedy may not be covered by good faith where the position of law is well settled but in a case where the position of law itself is unclear and different Courts and Counsel have divergent views, the pursuing of a wrong remedy cannot be termed negligent or careless. Proceedings initiated due to misunderstanding of law or upon bona fide mistake provide sufficient cause for condensation of delay.

10. In the present case, this Court finds that the question as to whether an order of dismissal of complaint in a summons case could be challenged by filing a revision or by filing an appeal has been quite controversial. Some Courts have been taking a view that it can be challenged by way of filing a revision and some Courts have taken the view that the only remedy available to the complainant is to file an appeal against acquittal. This Court also had considered this question in Kalpana Tyagi Vs. Snehlat Sharma (Crl.M.(M)No.3083/1994) and after examining the issue held that in a case where a complaint under Section 138 of the Negotiable Instruments Act is dismissed prior to the summoning of an accused a revision is maintainable but where a summoning order has been passed and thereafter the complaint is dismissed in default, it results in acquittal of the accused and as such, an appeal has to be filed. In Continental Papers Ltd. Vs. Dharshan Print Pack (P) Ltd. reported in 102 (2003) Delhi Law Times Page-18, a complaint under Section 138 of the Negotiable Instruments Act which had been dismissed in default, was ordered to be restored by a learned Single Judge in exercise of revisional powers. In Galaxie Plywood Industries (P) Ltd. Vs. Vijay Kumar reported in 87 (2000) Delhi Law Times Page-152, an order dismissing the complaint in default was set aside by a learned Single Judge exercising powers under Section 482 of the Code of Criminal Procedure. Therefore, it cannot be said that the question as to whither an appeal should be filed or a revision should be filed was clear and settled and as such the filing of the revision and thereafter petitions up to Supreme Court by learned counsel for the appellant was not bonafide or lacked good faith so as to disentitle the appellant to the benefit of Section 14 read with Section 5 of the Limitation Act, 1963.

10. Accordingly, this Court has no hesitation in holding that the appellant has satisfactorily established on record that there is sufficient cause and good grounds for condoning the delay. The application for condensation of delay, therefore is allowed and the delay in the filing of the leave to appeal is condoned.

11. Coming to the appellant's application for leave to appeal under Section 378(4) of the Code, this Court is of the view that the complaint of the appellant under Section 138 of the Act was dismissed in default by learned M.M. on 30th August, 2000, when none had appeared on behalf of the complainant. The question as to whether the learned M.M. was justified or not in dismissing the complaint requires consideration by this Court and as such it is a fit case for grant of leave to appeal against the orders doted 30th August, 2000.

12. The application is, therefore, allowed and leave to appeal is granted to the appellant.

13. Both the applications are disposed of.