Arvindbhai Parshottambhai Patel vs State Of Gujarat
2023 Latest Caselaw 2994 Guj

Citation : 2023 Latest Caselaw 2994 Guj
Judgement Date : 18 April, 2023

Gujarat High Court

Arvindbhai Parshottambhai Patel vs State Of Gujarat on 18 April, 2023

Bench: Ilesh J. Vora

      R/SCR.A/10106/2019                                  ORDER DATED: 18/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 10106 of 2019

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                      ARVINDBHAI PARSHOTTAMBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR DA SANKHESARA(5955) for the Applicant(s) No. 1
MR.MINHAJ M SHAIKH(6847) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 18/04/2023
                       ORAL ORDER

1. By this application, under Articles 226 and 227 of the

Constitution of India, the applicant - original accused is

challenging the order dated 29.07.2019 passed by the 2 nd

Additional Sessions Judge, Vadodara by which the

application to condone the delay in filing statutory appeal

against the judgment and order of conviction and sentence

under Section 138 of the N.I. Act passed by the Trial Court

has been rejected.

2. Dissatisfied with the order, the applicant has preferred the

present application.

3. The facts, in brief, are that private complaint being

C.C.No.38719 of 2004, for the alleged dishonour of cheque,

was filed by the respondent no.2. The 3 rd Additional CJM,

R/SCR.A/10106/2019 ORDER DATED: 18/04/2023

Vadodara convicted the applicant herein and sentenced

him to undergo one year simple imprisonment and fine of

Rs.5,000/- and default in making the fine, he has to

further undergo one month simple imprisonment. The

order of the conviction dated 26.04.2018 passed in the

absence of the applicant-accused on 26.04.2018.

4. The applicant had to file appeal within 60 days from the

date of the order, but he could not file the appeal as due to

chance of residence, and ailment of his father, he was not

informed about the proceedings of the criminal case and

therefore, after issuance of the warrant, he came to know

that the Court has convicted for the offences punishable

under Section 138 of the N.I. Act. Thus, delay of 310 days

had been occurred in preferring the appeal. The applicant

herein filed delay condone application along with the

appeal memo. The Additional Sessions Court, Vadodara

refused to condone the delay and while rejecting the

application, the Court has recorded that the applicant

remained negligent after the order of the conviction and

explanation put-forth by the applicant is not satisfactory

and acceptable.

5. Mr.D.A. Sankhesara, learned advocate for the applicant

R/SCR.A/10106/2019 ORDER DATED: 18/04/2023

submitted that while rejecting the application, the Court

has adopted hyper technical approach. The right of the

appeal is a statutory right and therefore, the Court should

take pragmatic approach and not pedantic approach for

condonation of delay and sufficient cause should be

liberally construed to do substantial justice.

6. Mr.M.M. Shaikh, learned advocate appearing for and on

behalf of respondent no.2, vehemently opposed the prayer

made in the application and contended that throughout

the proceedings, the applicant accused did not remain

present before the Trial Court and after conviction, he

remained negligent for a considerable time. Thus, the

learned Trial Court has rightly held that the applicant was

negligent throughout the proceedings and explanation

given by the applicant accused is not acceptable.

7. In such circumstances, learned advocate Mr.Shaikh for the

applicant and learned APP Mr.Pranav Trivedi for the

respondent - State pray that no case is made out for

exercising the discretion to condone the delay and no case

is made out warranting interference with the impugned

order.

8. It is not in dispute that the applicant has been convicted

R/SCR.A/10106/2019 ORDER DATED: 18/04/2023

and sentenced for the offence punishable under Section

138 of the N.I. Act. The right to file the appeal against the

judgment and order is a statutory right. Before the

Sessions Court, he has submitted medical case papers

pertaining to the treatment of his father. It is not in

dispute that during the proceedings of the criminal case,

he had shifted to another home and therefore, due to

change of address, he could not remain present before the

Court.

9. The principles regarding condonation of delay have been

enunciated in Collector (LA) Vs. Katiji (1987 (2) SCC

107), wherein the Apex Court in Para-3 observed as under:

"3. The legislature has conferred the power to condone delay by enacting Sec. 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of the matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on

R/SCR.A/10106/2019 ORDER DATED: 18/04/2023

principle as it is realised that :

(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

(3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay" The doctrine must be applied in a rational common sense pragmatic manner.

(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

(6) It must be grasped that judiciary is respect not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

10. In the light of the aforesaid position of law, if facts and

circumstances of present case are considered, it appears

that the applicant was not informed by his advocate about

the stage of the proceedings and his absence, the Trial

Court has passed the conviction order. The medical case

R/SCR.A/10106/2019 ORDER DATED: 18/04/2023

papers of the father of the applicant and change of home

address having not been properly considered by the

Sessions Court while dealing with the term "sufficient

cause". Thus, this Court is of the opinion that the

applicant cannot be held negligent while pursuing the

proceedings. It needs to be noted that the applicant is not