Habibbhai Aamadbhai Kureshi vs Sirinben Gulamhusain Halani
2023 Latest Caselaw 4879 Guj

      R/CR.RA/710/2023                          ORDER DATED: 23/06/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL REVISION APPLICATION NO. 710 of 2023
                      With
 CRIMINAL MISC. APPLICATION (FOR CONDONATION
             OF DELAY) NO. 1 of 2023
                       In
 R/CRIMINAL REVISION APPLICATION NO. 710 of 2023

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             HABIBBHAI AAMADBHAI KURESHI
                            Versus
             SIRINBEN GULAMHUSAIN HALANI
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Appearance:
MR CHINTAN S POPAT(5004) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS JIRGA JHAVERI, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                          Date : 23/06/2023

                           ORAL ORDER

Order in Criminal Misc. Application (For Condonation of Delay) No. 1 of 2023:

1. By way of this application under Section 5 of the Limitation

Act, 1963, the applicant has prayed for condonation of delay of 1364

days caused in preferring the revision application.

R/CR.RA/710/2023 ORDER DATED: 23/06/2023

2. Heard the learned advocate for the applicant. He submits that

dispute between the parties was resolved, however, the applicant -

accused could not inform the Court and got the order set aside nor

could he challenge the same in time. The learned advocate for the

applicant submitted that the applicant- accused is doing fishing work

and always remains in high sea, almost for 7-8 months and therefore,

he could not timely secure the documents to challenge the

concurrent findings of conviction and sentence, which led to delay in

filing the revision application.

3. In the case of Collector, Land Acquisition, Anantnag and

Another v. Mst. Katiji and Others, AIR 1987 SC 1353 it has been

observed as under:

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of 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

R/CR.RA/710/2023 ORDER DATED: 23/06/2023

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 principle as it is realized 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 respected not on account of its power to legalize injustice on technical grounds but because it is

R/CR.RA/710/2023 ORDER DATED: 23/06/2023

capable of removing injustice and is expected to do so."

4. Having heard the learned advocate for the applicant and

considering the averments made in the application and as the delay is

sufficiently explained and in view of the facts and circumstances of

the case of the case, the delay caused in filing the revision

application deserves to be condoned and is hereby condoned.

5. The application is allowed accordingly.

Order in Criminal Revision Application:

1. Learned advocate Mr. Divyang Joshi has instructions to appear

for the respondent No. 1 - original complainant. He shall file his

appearance in due course.

2. Heard, the learned advocate for the respective parties.

3. Challenge in this revision application at the instance of the

R/CR.RA/710/2023 ORDER DATED: 23/06/2023

applicant - accused is given to the concurrent findings of the learned

Courts below of conviction and sentence for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).

4. Rule. Learned advocates for the respective respondents waive

service.

5. Learned advocate Mr. Chintan Popat for the applicant states

that actually, the cheque amount had already been paid to the

original complainant but the said fact could not be made known to

the learned Court and as the applicant always remains in the high sea

for fishing work, he could not timely prefer the revision application.

He relied on the affidavit of respondent No. 1 - original complainant

to state that the complainant has also affirmed the settlement and of

receipt of the money.

5.1 Respondent No. 1 - Sirinben Gulamhusain Halani - original

complainant is present before the Court and is identified by learned

advocate Mr. Divyang Joshi. The learned advocate for the

R/CR.RA/710/2023 ORDER DATED: 23/06/2023

respondent No. 1 - original complainant states that the complainant

has received the money and the complainant does not want to pursue

the matter now in view of amicable settlement and has given consent

for compounding the offence. The complainant also files an

affidavit to that effect, which is on record.

6. Since, the total cheque amount has been received by the

complainant and the complainant has given consent for

compounding the offence, keeping in mind the object of Section 147

of the NI Act, which is an enabling provision which provides for

compounding the offence and may require the consent of the

aggrieved for compounding the offence, however, the specific

provision under Section 147, inserted by way of amendment towards

special law, would give overriding effect to sub-section (1) of

Section 320 Criminal Procedure Code, 1973 (CrPC) as has been

observed in the case of Damodar S. Prabhu v. Sayed Baba Lal,

AIR 2010 SC 1907. Accordingly, as the dispute has been resolved

and the total cheque amount has been paid to the complainant, in

consonance with the object of the NI Act and the provisions under

R/CR.RA/710/2023 ORDER DATED: 23/06/2023

Section 147 thereof, the matter is considered as compounded.

7. In aforesaid view of the matter, the judgment and order passed

by the learned trial Court of conviction and sentence for the offence

punishable under Section 138 of the NI Act, as affirmed by the

learned appellate Court, are quashed and set aside. The applicant

stands acquitted. The present revision application is allowed in the

above terms. Rule is made absolute accordingly.

[ Gita Gopi, J. ] hiren /31