Gujarat High Court
Alkaben Anilbhai Parmar vs State Of Gujarat on 25 June, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.MA/2223/2024 ORDER DATED: 25/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CONDONATION OF DELAY) NO.
2223 of 2024
In
R/CRIMINAL REVISION APPLICATION NO. 920 of 2024
With
R/CRIMINAL REVISION APPLICATION NO. 920 of 2024
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ALKABEN ANILBHAI PARMAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS TANAVEER K LOLADIA(9994) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR HARDIK MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/06/2024
ORAL ORDER
Order in Criminal Misc. Application
1. The present application has been filed
for condonation of delay of 109 days caused in
filing the revision application.
2. Ms. Tanaveer K.Loladia, learned advocate
for the applicant states that delay of 109 days
occurred to challenge the order of the courts
below, as the applicant was facing financial
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crunch and after making arrangement for funds and
taking legal advise, she could prefer the
revision application.
3. Learned APP for the respondent State
submitted that though each day delay has not to
be explained, but sufficient explanation is
required to be placed on record for consideration
of the Court, and, thus urged to reject the
application.
4. 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
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legislature is adequately elastic to
enable the courts to apply the law
in a meaning- ful 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.
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 con-
doned the highest that can happen is
that a cause would be decided on
merits after hearing the parties.
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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
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capable of removing injustice and is
expected to do so."
5. In view of the principle laid down in
the above referred judgment and considering the
averments made in the application and as the
delay is sufficiently explained, the matter
requires decision on merits. Hence, delay of 109
days caused in filing the revision application is
condoned. The application is allowed.
6. Let the main revision application be
listed today itself.
Order in Revision Application
1. Heard learned Advocate Ms. Tanaveer
K.Loladia for the applicant and learned advocate
Mr. Ishan H.Rajdev for respondent no.2 - original
complainant.
2. Rule. Learned APP waives service of
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notice of Rule on behalf of the respondent -
State and Mr. Ishan H.Rajdev, learned advocate
waives service of notice Rule on behalf of the
respondent no.2. By consent Rule is fixed
forthwith.
3. By way of this application, the
applicant - revisionist challenges the judgment
of conviction and sentence dated 28.01.2020
passed by the learned 3rd Additional Chief
Judicial Magistrate, Rajkot in Criminal Case
No.10818 of 2017, under Section 138 of the
Negotiable Instruments Act, 1881, which came to
be confirmed by order dated 28.06.2023 passed by
the learned 12th Additional Sessions Judge, Rajkot
in Criminal Appeal No.84 of 2021.
4. Ms. Tanaveer K.Loladia, learned advocate
for the applicant submitted that during the
pendency of the proceedings, parties have settled
the disputes amicably outside the Court, and now
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there remains no grievance between them. Advocate
Mr. Ishan H.Rajdev has produced affidavit of the
original complainant and concurred with the
factum of settlement, as canvassed by advocate
Ms. Tanaveer K.Loladia.
5. Respondent no.2, Meghdootbhai Santilal
Parmar - original complainant is present before
the Court and is identified by learned advocate
Mr. Ishan H.Rajdev. The respondent no.2 -
original complainant submitted that he has
received the amount to his satisfaction and now
he proposes to compound the matter. Respondent
no.2 - original complainant has affirmed about
the Demand Draft and has also referred to the
cash amount, which he has received as a full and
final payment towards settlement.
6. Since the amount to his satisfaction has
been received by the original complainant and has
given his consent for compounding the offence,
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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 entire
amount has been paid to the legal heir of
original complainant, in consonance with the
object of the N.I. Act and the provisions under
Section 147 thereof, the matter is considered as
compounded.
7. In aforesaid view of the matter, the
judgments and orders dated 28.01.2020 passed by
the learned 3rd Additional Chief Judicial
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Magistrate, Rajkot in Criminal Case No.10818 of
2017, which came to be confirmed by order dated
28.06.2023 by the learned 12th Additional Sessions
Judge, Rajkot in Criminal Appeal Nos.84 of 2021
for the offence punishable under Section 138 of
the NI Act, is quashed and set aside. Warrant, if
any, issued stands cancelled.
8. Accordingly, the present application
stands disposed of in the above terms. Rule is
made absolute to the aforesaid extent. Direct
service is permitted.
(GITA GOPI,J)
Pankaj
