Gujarat High Court
Mukundbhai Bharatbhai Dindor vs Harijan Kalpeshbhai Kantibhai on 20 February, 2024
NEUTRAL CITATION
R/CR.MA/22977/2023 ORDER DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22977
of 2023
In R/CRIMINAL APPEAL NO. 420 of 2024
With
R/CRIMINAL APPEAL NO. 420 of 2024
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MUKUNDBHAI BHARATBHAI DINDOR
Versus
HARIJAN KALPESHBHAI KANTIBHAI & ANR.
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Appearance:
MR MAHARSHI PATEL FOR MR AADITYA D BHATT(8580) for the
Applicant(s) No. 1
for the Respondent(s) No. 1
MS MONALI BHATT APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 20/02/2024
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. This is an application by the applicant - original
complainant under Section 378(4) of the Code of Criminal
Procedure, 1973, seeking leave of this Court to present an
appeal against the judgment and order of acquittal, passed by
the learned Additional Chief Judicial Magistrate, Mahisagar,
Lanawada dated 30.09.2023 in Criminal Case No.1097 of 2020.
2. Heard learned advocate appearing for the applicant -
original complainant and perused the impugned judgment and
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order of the trial Court.
3. Learned advocate submits that the judgment and order
of acquittal was passed on two main grounds. One is that the
complaint is filed after limitation period was over without any
application for condonation of delay and second is that the
complainant had admitted in the cross-examination that the
signature on the cheque was not of accused. The learned
advocate has drawn the attention of this Court with regard to
the judgment passed by the Hon'ble Apex Court in Misc.
Application No.21 of 2022 dated 10.01.2022 relaxing the
period of limitation during the covid - 19 pandemic. The
relevant portion is reproduced hereinbelow:-
"1. In March, 2020, this Court took Suo Motu
cognizance of the difficulties that might be faced by
the litigants in filing petitions/
applications/suits/appeals/all other quasi proceedings
within the period of limitation prescribed under the
general law of limitation or under any special laws
(both Central and/or State) due to the outbreak of the
COVID-9 pandemic.
2. On 23.03.2020, this Court directed extension
of the period of limitation in all proceedings before
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Courts/Tribunals including this Court w.e.f.
15.03.2020 till further orders. On 08.03.2021, the
order dated 23.03.2020 was brought to an end,
permitting the relaxation of period of limitation
between 15.03.2020 and 14.03.2021. While doing so,
it was made clear that the period of limitation would
start from 15.03.2021.
3. Thereafter, due to a second surge in COVID-19
cases, the Supreme Court Advocates on Record
Association (SCAORA) intervened in the Suo Motu
proceedings by filing Miscellaneous Application
No.665of 2021 seeking restoration of the order dated
23.03.2020 relaxing limitation. The aforesaid
Miscellaneous Application No.665 of 2021 was
disposed of by this Court vide Order dated
23.09.2021, wherein this Court extended the period
of limitation in all proceedings before the
Courts/Tribunals including this Court w.e.f 15.03.2020
till 02.10.2021.
4. The present Miscellaneous Application has been
filed by the Supreme Court Advocates on Record
Association in the context of the spread of the new
variant of the COVID-19 and the drastic surge in the
number of COVID cases across the country.
Considering the prevailing conditions, the applicants
are seeking the following:
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i. allow the present application by restoring the order
dated 23.03.2020 passed by this Hon'ble Court in Suo
Motu Writ Petition(C)NO.3 of 2020;and
ii. allow the present application by restoring the order
dated 27.04.2021 passed by this Hon'ble Court in
M.A. no.665 of 2021 in Suo Motu Writ Petition (C)
NO.3 of 2020;and
iii. Pass such other order or orders as this Hon'ble
Court may deem fit and proper.
5. Taking into consideration the arguments
advanced by learned counsel and the impact of the
surge of the virus on public health and adversities
faced by litigants in the prevailing conditions, we
deem it appropriate to dispose of the M.A.No.21 of
2022 with the following directions:
I. The order dated 23.03.2020 is restored and in
continuation of the subsequent orders dated
08.03.2021, 27.04.2021 and 23.09.2021, it is
directed that the period from 15.03.2020 till
28.02.2022 shall stand excluded for the purposes of
limitation as may be prescribed under any general or
special laws in respect of all judicial or quasijudicial
proceedings.
II. Consequently, the balance period of limitation
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remaining as on 03.10.2021, if any, shall become
available with effect from 01.03.2022.
III. In cases where the limitation would have expired
during the period between 15.03.2020 till
28.02.2022, notwithstanding the actual balance
period of limitation remaining, all persons shall have
alimitation period of 90 days from 01.03.2022. In the
event the actual balance period of limitation
remaining, with effect from 01.03.2022 is greater
than 90 days, that longer period shall apply.
IV. It is further clarified that the period from
15.03.2020 till 28.02.2022 shall also stand excluded
in computing the periods prescribed under Sections
23 (4) and 29A of the Arbitration and Conciliation Act,
1996, Section 12A of the Commercial Courts Act,
2015 and provisos (b) and (c) of Section 138 of the
Negotiable Instruments Act, 1881 and any other laws,
which prescribe period(s) of limitation for instituting
proceedings, outer limits (within which the court
or tribunal can condone delay) and termination of
proceedings.
6. As prayed for by learned Senior Counsel, M.A. No.
29 of 2022 is dismissed as withdrawn."
4. The learned advocate has also drawn the attention of this
Court with regard to the cross-examination wherein, the
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complainant admitted that as per the endorsement of the
return memo, the signature on the cheque is not of the
accused. In the next question, the complainant had also
admitted that it is not true that in the disputed cheque, the
signature is not of the accused. The learned advocate submits
that this question was misread by the learned trial Court and
come to the conclusion that the complainant had admitted the
fact that the signature on the cheque is not of the accused.
The learned advocate submits that there is a written
agreement which was also executed between the complainant
and the accused wherein, the amount of Rs.30,000/- was
mentioned. The learned advocate submits that without any
cogent reason, the judgment and order of acquittal was
passed.
5. Considering the avernments made in the application and
submissions made by the learned advocates appearing for the
respective parties, this Court finds that there is some arguable
case in favour of the applicant, therefore, leave, as prayed for,
is granted. This application is allowed.
ORDER IN CRIMINAL APPEAL:
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1. The appeal is admitted. Learned APP waives service of
notice of admission on behalf of respondent - State.
2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees
Five Thousand only) against the respondent - original accused.
3. Record and proceedings be called for from the concerned
court. Registry is directed to list the Criminal Appeal in
seriatim.
(M. K. THAKKER,J)
Hitesh
