Kamdhenu Auto Enterprise Thro Its ... vs Gajendrasinh Gulamsinh Solanki
2023 Latest Caselaw 4617 Guj

     R/CR.MA/22370/2019                           JUDGMENT DATED: 19/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 22370 of 2019

              In R/CRIMINAL MISC.APPLICATION NO. 22371 of 2019

                                  With
               R/CRIMINAL MISC.APPLICATION NO. 22371 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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      KAMDHENU AUTO ENTERPRISE THRO ITS POA YOGENDRASINH
                       PACHUBHA JADEJA
                            Versus
               GAJENDRASINH GULAMSINH SOLANKI
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Appearance:
YUVRAJ G THAKORE(7785) for the Applicant(s) No. 1
MR SUNIL K SHAH(803) for the Respondent(s) No. 1
MS SUSHMA S SHAH(806) for the Respondent(s) No. 1
MR HARDIK METHA ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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    CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                              Date : 19/06/2023

                             ORAL JUDGMENT

1. This application is filed seeking condonation of delay of 439

R/CR.MA/22370/2019 JUDGMENT DATED: 19/06/2023

days caused in filing the appeal against the judgment and order dated 21.07.2018 passed below Exhibit 1 in Criminal Case No.628 of 2014 by the learned Metropolitan Magistrate, Special N.I. Court No.27, Ahmedabad. By the said judgment and order, the learned Magistrate has proceeded to record the order of acquittal by dismissing the complaint for default in exercise of powers conferred under Section 256 of the Code of Criminal Procedure.

2. It is the case of the applicant - original complainant that he became aware about the impugned order on 02.11.2019. It is contended by the applicant that though the original complainant was represented through his advocate, he was intimated by his lawyer that the talks of settlement were in progress for which his personal presence may not be required. He, therefore, bona fidely believed his advocate and did not remain present. As soon as he became aware about the impugned order, he applied for certified copy of the order, complaint etc. on 04.10.2019. It is further contended that Registry of the concerned Court took time in processing papers and certified copy was made available to the applicant on 06.12.2019. It is further contended that having received the copy, the applicant has sought opinion of the advocate and as per the advise, he has preferred present Appeal on 28.11.2019. The prescribed period has also lapsed and has resulted into delay of 439 days in filing the Appeal against the impugned order of acquittal dated 21.07.2018 passed in Criminal Case No.628 of 2014.

3. Aforesaid submissions of the original complainant have been strongly objected by the respondent accused by filing affidavit in reply. The respondent has invited attention of this Court to the

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impugned order, which has been passed by the learned Magistrate under Section 256 of the Code and much emphasized was made on the fact that the compliant relates to the year 2014 and in absence of any cooperation of the original complainant, the hearing of the trial was delayed. In such circumstances, it is submitted that the learned Magistrate has rightly exercised the powers under Section 256 of the Cr.P.C. The respondent has objected the submission that even otherwise there is no case on merits and delay caused in filing this appeal may not be entertained and is required to be rejected with cost. The learned advocate for the respondent has placed much emphasize on the fact that even assuming the averments made in the application to be true the order was passed on 21.07.2018 and the applicant claims to have knowledge of such fact only on 02.11.2019, which displays negligent and lethargic approach of the complainant. He therefore, submitted that the same cannot be treated as sufficient explanation for condonation of delay. Mr. Sunil Shah, learned advocate has relied upon the following authorities in support of his submissions:

1. 2007 (2) GLR 1785 -

State of Gujarat Vs. Dinesh Keshavlal Mehta.

2. 2014(3) GLR 319 -

State of Gujarat Vs. Dahyabhai Nyalchand Vora

4. Mr. Thakore, learned advocate for the applicant - original complainant has relied upon the decision of this Court in the case of Shree Malara Group, M.K. Shipping and Allied Services vs. Ashwinbhai Harilal Padhariya (Civil Revision Application No.149 of 2019, decided on 16.01.2020).

R/CR.MA/22370/2019 JUDGMENT DATED: 19/06/2023

5. Considering the submissions made by the learned advocate appearing for the respective parties and having perused the record, the original appeal relates to the dismissal of the complaint for the default arising out of the offence under Section 138 of the Negotiable Instruments Act. The impugned order has been passed by the leaned Magistrate in exercise of power conferred under Section 256 of the Code. In the present application, the complainant had raised ground that the lawyer for the complainant had intimated that the settlement talks were going on between the parties and his presence would not be required. With such explanation, the applicant claims to be under bona fide belief. It is contended that the explanation offered by the complainant is without any supporting materials on record. Such fact has been contended on oath by way of affidavit of the applicant.

6. In the case of the Collector, Land Acquisition Vs. Mst. Katiji reported in 1987 AIR 1353, the Hon'ble Supreme Court has prescribed certain principles, while considering the application for condonation of delay. One of the principle prescribed is that ordinarily the litigant does not stand benefited by instituting the appeal lately. The Court while refusing the delay, may throw away the matter without there being any adjudication on merits, which may in some case lead to justice being defeated. On the other hand, if the delay is condoned, the highest that can happen is that the case will be decided on merits that is the decision would be taken after adjudication whether than on technical ground being dismissed. The Hon'ble Supreme Court while considering the aspect of condonation of delay on various occasions, has laid down that whenever the substantial justice and technical issue falls

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for consideration, former deserves to be preferred. There is no presumption that delay is occasioned deliberately or on the litigant does not stand to benefit by resorting to delay and in fact, he runs a serious risk.

7. In light of aforesaid, the principle being laid down by the Hon'ble Supreme Court, the Court notices that the dispute revolves around dishonour of cheque of the amount of Rs.13 Lakhs. The statement of the complainant in the form of affidavit that he derived the knowledge about the impugned order requires acceptance as nothing contrary has been brought on record by the respondent. At the same time, the Court notices that the complaint has been dismissed for default because of non-cooperation of the original complainant before the trial Court. Reliance placed by the learned advocate on the decision of this Court in the case of State of Gujarat Vs. Dinesh Keshavlal Mehta (Supra) is concerned, it was a case when the Court had refused to condone the delay deprecating the stage of two offences and lack of synchronization between Legal Department and the office of Public Prosecutor at Sessions level as well as at High Court. Because of such lack of synchronization and lack of accountability for such lapse and negligence of State Authorities. It was in light of such fact, the Court has refused to condone the delay.

8. In the case of State of Gujarat Vs. Dahyabhai Nyalchand Vora (Supra), the Court had refused to condone the delay, which was caused on account of administrative procedure as per the explanation offered by the State while filing an appeal. The Court while examining the explanation offered by the State, noticed that no application for certified copy was given within prescribed period

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of limitation and having noticed such apathy and negligence on the part of the State, without making any rule of thumb, had observed that when the application for certified copy is not given within prescribed period of limitation, mere movement of files from one table to another, cannot be treated as sufficient cause in condoning the delay. Thus, it was indolence on the part of the applicant in preferring appeal let Court to not to accept such explanation to be treated as sufficient cause for condoning delay.

9. The Hon'ble Supreme Court in leading judgment of Balakrishanan Vs. M.A. Krishnamurthy reported in 1998(7) SCC 123 has held that the explanation offered for rule of limitation is required to be considered. The Hon'ble Supreme Court has observed that rule of limitation has not been incorporated to destroy the right of party but to ensure that the party do not resort to dilatory practice and seeks their remedy promptly. The Court certainly finds that the complainant has been negligent in not pursuing the proceedings. However, the same does not fall in the category of dilatory tactics. Hence, this Court is inclined to accept the explanation offered by the applicant for condoning the delay caused in filing appeal.

10. Present application is hereby allowed. The delay caused in filing appeal is hereby condoned. Rule is made absolute.

CRIMINAL MISC. APPLICATION NO.2271 of 2019:

Rule returnable on 26.06.2023. Mr. Sunil Shah, learned advocate waives service of Rule on behalf of the respondent No.1 and Mr. Mehta, learned APP waives service of Rule on behalf of

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the respondent No.2.

Considering the nature of dispute involved, let R & P be called so as to reach this Court before the next date of hearing.

(NISHA M. THAKORE,J) Y.N. VYAS