Gujarat High Court
Gujarat Agro Industries Corporation ... vs State Of Gujarat on 2 February, 2024
NEUTRAL CITATION
R/CR.MA/18191/2023 ORDER DATED: 02/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CONDONATION OF DELAY) NO.
18191 of 2023
In F/CRIMINAL MISC.APPLICATION NO. 32156 of 2023
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GUJARAT AGRO INDUSTRIES CORPORATION THRO SURESH K.
CHAUDHRI
Versus
STATE OF GUJARAT
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Appearance:
MS PJ DAVAWALA(240) for the Applicant(s) No. 1
MR NIRAV K SOLANKI(11758) for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 02/02/2024
ORAL ORDER
1. This is an application filed by the applicant praying to
condone the delay of 173 days caused in filing the application
seeking leave to prefer an appeal and the appeal wherein, the
impugned order dismissing the complaint by exercising the
power under Section 256 of the Code of Criminal Procedure is
under challenge.
2. In addition to explanation offered in the application, the
applicant has also filed the further affidavit explaining the
delay wherein, it is contended that after the judgment and
order of the acquittal was passed on 11.01.2023, the
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procedure which was followed by the applicant is mentioned
herein below.
"4. The applicant submits that the impugned
order was passed on 11.01.2023. On 12 th
January inquiry was made by my advocate with
the concerned advocate who was attending
the matter before lower court. In reply to the
said inquiry on 16.01.2023 he apologized for
non appearance before the court and informed
that as he was busy in some other court and
matter has been dismissed for non
prosecution. An advocate also assured that he
will file appropriate application for restoration
of case. On 31.01.2023 a draft copy of
restoration application was sent for
notarization.
5. Thereafter on 08.02.2023 applicant
handed over notarized copy to an advocate
who was dealing with the case before lower
court. On 22.02.2023 an advocate informed
that court is not accepting an application for
restoration and applicant is required to file an
appeal before High Court. This is for the first
time an applicant was informed that nothing
can be done further before lower court and an
appeal against acquittal is required to be filed
before Hon'ble High Court.
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6. After consulting the concerned authority
of the applicant a decision was taken to file an
appeal before High Court on 04.05.2023. It is
further submitted that on 26.05.2023 an
appeal was prepared and after consulting an
advocate of High Court final draft was made
and after that on 25.06.2023 the same was
given for filing before High Court. At that time
it was realized that certified copy is not
available in the file and therefore through an
advocate application for certified copy was
made. On 15.07.2023 an inquiry was made for
certified copy. On 31.07.2023 it was informed
by the clerk of the advocate that as there is
delay in filing the application/appeal, an
application for condonation of delay is also
required to be filed.
7. It is further submitted that on 29.08.2023
certified copy was made available for filing
before Hon'ble Court. On receipt of the said
copy, an application for delay condonation was
prepared and the same was notarized on
16.09.2023.
8. As far as affidavit in reply filed by an
advocate is concerned there is nothing on
merits of the matter and all submissions are
made raising technical objection which are
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legal issues and my advocate will take care of
the matter at the time of hearing. As far as
contention with regard to 32 dates since
24.01.2020 to 17.12.2022 is concerned, it is
submitted that it is covid period and during
that time nobody was attending the court. It is
not true that complainant has become serious
after 3 years. It is required to be noted that if
complainant would not have been serious he
would not have initiated proceedings at all.
The amount is still to be recovered by Govt.
Corporation from the respondent who availed
the services of the complainant and now with
ulterior motives raising all technical objections
without making any payment. The accused has
nothing to say on merits and therefore raising
all technical objections to deny applicant from
its legitimate dues."
3. By submitting and relying upon the averments made in
the application and the further affidavit, learned advocate
prays that delay which is caused in filing the application
seeking leave to appeal and appeal be condoned in the
interest of justice.
4. Opposing this application, learned advocate Mr.Nirav
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Solanki has filed the affidavit-in-reply wherein, the following
contentions were raised.
"5. It is submitted that as per the finding in
the order/judgment dated 11.01.2023 of the
Trial Court, it is stated that since 02.08.2021,
neither the applicant/appellant nor his
advocate has remained present in the matter
and it has been more than 2 years the matter
is on the stage of cross-examination of
complainant. It is pertinent to note that it is
stated in the order that the respondent no.2
and his advocate has remained present even
on the last day when this order was passed by
the Ld. Trial Court. Therefore, the Ld. Trial
Court rightly acquitted the respondent no.2
and dismissed the complaint under section 256
of the Cr.P.C.
It is respectfully submitted that the
respondent no.2 to show his bonafide and
prove his innocence has remained present on
each and every date before the Trial Court but
the applicant/appellant or his advocate has
never appeared causing wastage of judicial
time and wastage of time as well as money of
the respondent no.2. Therefore, in this
circumstances technically the delay is of 173
days for filing this appeal but practically, the
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complainant getting serious after more than 3
years decided to initiate the criminal
proceeding against the respondent no.2 for
which that delay is without sufficient cause and
hence, the delay application may be rejected.
6. It is submitted that the time spent in
obtaining legal opinion and engagement of
counsel is not a 'sufficient cause' to condone
the delay in filing of appeal.
7. It is submitted that the E-Court Service is
very sufficiently working in the nation and
every Advocate's mobile number and email
address is registered at the E-court Portal and
therefore, each and every case detail of the
upcoming case in the concerned court is
reminded by way of SMS and E-mail to the
concern advocate on record and therefore, this
ground of advocate being unaware of the case
is unsustainable and the delay application has
insufficient cause and may be rejected.
That as per case-status of Criminal Case
No.4024 of 2019, the matter has been lingered
on the stage of evidence of prosecution for
almost 32 dates/adjournments i.e., since
24.01.2020 till 17.12.2022 which is the date
before the date of final order. The copy of
case-status of Criminal Case No.4024 of 2019
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derived from E-court portal is annexed
herewith as ANNEXURE-R1.
8. It is further stated that there is no
sufficient cause or explanation about the
inordinate delay for filing of appeal after
limitation from 11.03.2023 till this
appeal/application was preferred before this
Hon'ble Court. It is pertinent to note that in the
case of Pundlik Jalam Patil (supra), it was
observed by this Court that the court cannot
enquire into belated and stale claims on the
ground of equity. Delay defeats equity. The
Courts help those who are vigilant and "do not
slumber over their rights.
9. It is further stated and submitted that in
SC Ruling in Popat Bahiru Govardhane Etc. Vs.
Special Land Acquisition Officer & ANR, 2013
latest Caselaw 570 SC, wherein it was
observed that the law of limitation may harshly
affect a particular party but it has to be applied
with all its rigour when the statute so
prescribes. The Court has no power to extend
the period of limitation on equitable grounds.
The statutory provision may cause hardship or
inconvenience to a particular party but the
Court has no choice but to enforce it giving full
effect to the same.
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10. Hence, in light of the aforesaid facts, it
prima facie appears that there is no sufficient
cause or explanation about the inordinate
delay in filing the present application/appeal
before this Hon'ble Court. It is also stated that
in view of the ratio laid down by the Hon'ble
Apex Court the present petition is devoid of
substance and the same deserved to be
rejected."
5. Considering the submissions advanced by the learned
advocates for the respective parties and perusing the
pleadings, it transpires from the record that the impugned
complaint was filed in the month of May 2019 and thereafter,
plea of the accused was recorded in the month of January
2020. Thereafter, due to covid - 19, where all Courts were not
working, the matter was adjourned from time to time. It
transpires from the record that after reopening of the Court,
the learned advocate for the complainant did not remain
present and therefore, the learned trial Court has passed the
judgment and order of the acquittal. It is coming from the
record that genesis of the complaint is that the complainant,
who is the Government sector has sold the fertilizer,
pesticides, bio- fertilizer and agricultural tools and for the re-
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payment of the aforesaid bill, cheque of Rs.18,53,035/- was
issued in favour of the complainant. On dishonoring the said
cheque, a private complaint came to be filed. It is true that the
learned advocate for the complainant did not remain present
when the impugned order was passed. But, it also transpires
from the averments made in application, which was not denied
by the learned advocate for the respondent, that after
dismissing the complaint, the application for restoration was
prepared and the learned advocate went to the registry of the
learned trial Court for filing the same which was returned back
and at that point of time, the applicant came into knowledge
that the appeal against the aforesaid order is required to be
filed before this Court. Because of the non-appearance of the
parties, complainant who may have the fair case, should not
be suffered.
6. The explanation offered in the application for condoning
delay of 173 days appears to be satisfactory and, therefore,
this Court deems it fit to allow this application. The delay of
173 days is hereby condoned. Rule is made absolute to the
aforesaid extent.
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7. However, due to the non-appearance and due to the
delay, the respondent has to appear before this Court by
engaging an advocate and, therefore, appropriate cost is
require to be awarded.
8. In view of the above application for condonation of delay
is allowed. Learned advocate for the applicant is directed to
deposit the cost of Rs.10,000/- with the registry of this Court
within a period of two weeks from today. On depositing the
cost, the same shall be disbursed in the name of the
respondent, after due verification.
(M. K. THAKKER,J)
Hitesh
