Arvindbhai Harjibhai Baraiya vs State Of Gujarat
2024 Latest Caselaw 5154 Guj

Gujarat High Court

Arvindbhai Harjibhai Baraiya vs State Of Gujarat on 21 June, 2024

Author: Gita Gopi

Bench: Gita Gopi

                                                                                            NEUTRAL CITATION




      R/CR.RA/533/2024                                     ORDER DATED: 21/06/2024

                                                                                            undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
             SUBORDINATE COURT) NO. 533 of 2024

==========================================================
                         ARVINDBHAI HARJIBHAI BARAIYA
                                    Versus
                           STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MS SHIVANGI D MADHAD(13116) for the Applicant(s) No. 1
MS HELLY PANCHAL FOR DHRUVIK K PATEL(7769) for the Respondent(s)
No. 2
KALPESH R PATEL(7896) for the Respondent(s) No. 2
MR HARDIK MEHTA, ADDL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
==========================================================

  CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 21/06/2024

                                    ORAL ORDER

1. Rule. Learned APP waives service of notice of rule on behalf of respondent - State. Learned advocate Ms. Helly Panchal waives service of notice of rule on behalf of respondent No.2.

1.1 The petitioner is an accused of Criminal Case No.9423 of 2016. Proceedings under Section 138 of the Negotiable Instruments Act were concluded and petitioner was convicted for simple imprisonment of One year and ordered to pay compensation of Rs.77,760/- to the complainant within a period of One month and in default of payment, further to undergo simple imprisonment of Six months. The petitioner preferred Criminal Misc. Application No.608 of 2024 before the

NEUTRAL CITATION

R/CR.RA/533/2024 ORDER DATED: 21/06/2024

undefined

learned Additional Sessions Judge, Rajkot making a prayer to condone the delay of 853 days in challenged the judgment and order of conviction and sentence passed by the trial Court. Such delay condone application came to be rejected vide order dated 12.03.2024. Aggrieved by the said order, present petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure.

2. Learned advocate Ms. Shivangi Madhad stated that judgment which was came to be delivered by the trial Court on 21.10.2021 was in his absence. The said fact has been quoted in the operative part of the order. The trial Court has referred Section 353(7) of the Code of Criminal Procedure which notes that the judgment delivered by the Criminal Court in absence of the party shall not be considered as invalid for the reason the same being delivered on the date as notified.

3. Learned advocate Ms. Madhad stated that the information with regard to the delivery of the judgment could not be drawn prima facie against the petitioner since execution of warrant of sentence is required to be issued to the accused and only after service of warrant he could be produced before the trial Court and thereafter could be committed to the custody.

3.1 She further submitted that the petitioner himself has surrendered on 17.02.2024 and thereafter as per the legal advice, delay condone application was preferred before the Court of learned Additional Sessions Judge making a prayer for condoning the delay.

NEUTRAL CITATION

R/CR.RA/533/2024 ORDER DATED: 21/06/2024

undefined

4. On the other hand, learned advocate Ms. Helly Panchal for learned advocate Mr. Dhruvik Patel for the respondent submitted that the order of the Sessions Court is reasoned order justifying the rejection of application.

4.1 It is further submitted that the delay of 853 days has been occurred although the petitioner was aware about the legal proceedings and about Rs.40 Lacs is required to be recovered from the present applicant.

5. Heard learned advocates appearing for the respective parties. In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others reported in 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 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.

NEUTRAL CITATION

R/CR.RA/533/2024 ORDER DATED: 21/06/2024

undefined

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

5.1 Taking into consideration the above referred judgment, it cannot be said that the petitioner had any ulterior motive to file an appeal at belated stage, since it would not help him to gain any favour. The appellate Court should have considered that filing an appeal is the statutory right of the petitioner and an opportunity should be granted to the petitioner to defend

NEUTRAL CITATION

R/CR.RA/533/2024 ORDER DATED: 21/06/2024

undefined

his case since proceedings shows that some amount was procured for purchasing commercial vehicle and the loan amount has been passed. The cheque amount which is matter of dispute is Rs.97,200/-. The proceedings before the trial Court suggest that the petitioner was served with the summons under Section 204 of the Code of Criminal Procedure, he appeared before the Court and all the documents relied by the complainant were provided to him as per the provisions of Section 207 of the Code of Criminal Procedure and his plea was recorded vide Exh.19 and he was represented by an advocate. After closing purshis was submitted by the complainant, further statement of the accused was prepared under Section 313 of the Code of Criminal Procedure. After the matter reached for the further statement of the accused, warrant was issued frequently to the accused but neither the accused remained present not any report had been produced. Thereafter, an application of closing pursis of further statement comes from the complainant, an order was passed below Exh.40. Petitioner has not filed any oral or documentary evidence in support of his case. The right of the arguments of the accused was closed vide Exh.41.

5.2 The appellate Court while deciding an application for condonation of delay was required to take into consideration the fact that the petitioner wanted to challenge the judgment but managing the amount which is to be paid to the complainant became the questionable issue.

5.3 In case of Jamboo Bhandari vs M.P. State Industrial Development reported in 2023 (10) SCC 446, the Honourable

NEUTRAL CITATION

R/CR.RA/533/2024 ORDER DATED: 21/06/2024

undefined

Apex Court has dealt with the issue of depositing the minimum amount and it is for the appellate Court to satisfy itself regarding the conditions of deposit to consider whether such imposing of condition would be unjust or such condition will deprive the right of the appellant. The right to file an appeal being statutory right, the appellate Court would require to consider the facts of the case and ought to have condone the delay.

6. In view of the preposition as laiddown in case of Collector, Land Acquisition (supra) and Jamboo Bhandari (supra), right to appeal being statutory right, the petition is allowed. The impugned order dated 12.03.2024 passed in Criminal Misc. Application No.608 of 2024 is quashed and set aside. The delay caused in filing appeal before the appellate Court stands condone. The petitioner is permitted to file an appeal with an application under Section 389 of the Code of Criminal Procedure for suspending the sentence and the appellate Court shall decide the same in accordance with law. Rule is made absolute that extent. Direct service is permitted.

(GITA GOPI,J) DRASHTI K. SHUKLA