Kerala High Court
Saji Yohannan vs State Of Kerala on 21 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CRL.L.P. NO. 226 OF 2023
AGAINST THE JUDGMENT DATED 17.08.2018 IN CC NO.820 OF
2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM
CRIME NO.671/2007 OF Kundara Police Station, Kollam
PETITIONER/COMPLAINANT:
SAJI YOHANNAN
AGED 58 YEARS
ANTONY VILASAM THEKKEMURI, EAST KALLADA P.O.,
NOW RESIDING AT LAKE VIEW, KOTTAPPURAM,
MULAVANA P.O., KOLLAM, PIN - 691503.
BY ADVS.
SAIJO HASSAN
P.K.ANTONY
AATHIRA SUNNY
NAZRIN HALLAJ
RENJINI M. RENJITH
ROSE MATHEW
K.N.MUHAMMED THANVEER
LAKSHMINARAYAN.R
AKHILESH S.
ABHIRAMI DINESH
BENOJ C AUGUSTIN
RAFEEK. V.K.
U.M.HASSAN
P.PARVATHY
RESPONDENTS/STATE & ACCUSED:
1 STATE OF KERALA
HIGH COURT OF KERALA
ERNAKULAM, PIN - 682031.
2 VARGHESE
AGED 68 YEARS
KOCHUTHUNDIL VEEDU, ELAMBALLIMURI, PALLIKKAL
VILLAGE, ADOOR TALUK,PATHANAMTHITTA- 690504.
2
Crl.L.P.No.226 of 2023
BY ADVS.
R1 BY SEENA C., PUBLIC PROSECUTOR
R2 BY TONY GEORGE KANNANTHANAM
R2 BY THOMAS GEORGE
THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR
FINAL HEARING ON 08.04.2024, THE COURT ON 21.05.2024
DELIVERED THE FOLLOWING:
3
Crl.L.P.No.226 of 2023
P.G. AJITHKUMAR, J.
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Crl.L.P.No.226 of 2023
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Dated this the 21st day of May, 2024
ORDER
Crl.M.A.No.1 of 2022 in Crl.L.P.No.226 of 2023
This is an application filed under Section 5 of the
Limitation Act, 1963. Delay of 554 days in filing the Criminal
Leave Petition is sought to be condoned. The petitioner
contends, in terms of the averments in the affidavit and also in
the additional affidavit filed in support of the petition as follows:
The petition for leave ought to have been filed on or before
17.11.2018 for, the impugned judgment was pronounced on
18.09.2018. Unprecedented floods started in Kerala on
16.08.2018. That caused closure of the petitioner's shop and
fraught with untold miseries. On account of the financial loss
and mental depression, he could not contact the lawyer.
Subsequently, COVID-19 pandemic gripped the country. On
account of such vis major elements, the petitioner was unable
to file the petition for leave in time. Therefore, there is
sufficient reason for condoning the delay.
2. The 2nd respondent filed an objection. He contends
that even the application for a certified copy of the impugned
judgment was submitted belatedly. That delay, which is from
18.11.2018 till 14.06.2019 and also the delay in receiving the
certified copy, which was made ready, are also not explained.
The reasons stated for the delay are vague, false and quite
unsatisfactory. The petition is accordingly sought to be
dismissed.
3. Heard the learned counsel for the petitioner, the
learned counsel for the 2nd respondent and the learned Public
Prosecutor.
4. The petition was submitted before this Court on
17.02.2022. The period from 15.03.2020 till filing of the
petition gets excluded from the period of limitation in view of
decision of the Apex Court in In Re:Cognizance for
Extension of Limitation [(2022) 3 SCC 117]. Excluding
that period, is the delay stated by the petitioner.
5. True, there occurred an unprecedented flood in
Kerala in August, 2018. However, its effect did not last for
years together. The case of the petitioner is that on account of
the devastating flood, his business had to be closed and
consequently he sustained huge loss and was put to a state of
mental distress. The 2nd respondent denied the said
assertions. Despite such denial, no evidence or material has
been produced by the petitioner to substantiate his
contention. When the delay is inordinate, mere averment in
the affidavit unsupported by any evidence or material is
insufficient, especially when such assertions are stoutly denied
by the opposite party.
6. In Collector, Land Acquisition v. Katiji [(1987)
2 SCC 107], in the context of Section 5 of the Limitation Act,
1963, the Apex Court held that, 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.
7. In Esha Bhattacharjee v. Raghunathpur Nafar
Academy [(2013) 12 SCC 649] the Apex Court while
summarising the principles applicable while dealing with an
application for condonation of delay held that, the concept of
liberal approach has to encapsulate the conception of
reasonableness and it cannot be allowed a totally unfettered
free play. The Apex Court held further that, there is a
distinction between inordinate delay and a delay of short
duration or few days, for to the former doctrine of prejudice is
attracted whereas to the latter it may not be attracted. That
apart, the first one warrants strict approach whereas the
second calls for a liberal delineation. Para.21 of the judgment
reads thus;
"21. From the aforesaid authorities the principles that
can broadly be culled out are:
21.1 There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with
an application for condonation of delay, for the courts
are not supposed to legalise injustice but are obliged
to remove injustice.
21.2 The terms "sufficient cause" should be
understood in their proper spirit, philosophy and
purpose regard being had to the fact that these
terms are basically elastic and are to be applied in
proper perspective to the obtaining fact-situation.
21.3 Substantial justice being paramount and pivotal
the technical considerations should not be given
undue and uncalled for emphasis.
21.4 No presumption can be attached to deliberate
causation of delay but, gross negligence on the part
of the counsel or litigant is to be taken note of.
21.5 Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant
fact.
21.6 It is to be kept in mind that adherence to strict
proof should not affect public justice and cause
public mischief because the courts are required to be
vigilant so that in the ultimate eventuate there is no
real failure of justice.
21.7 The concept of liberal approach has to
encapsule the conception of reasonableness and it
cannot be allowed a totally unfettered free play.
21.8 There is a distinction between inordinate delay
and a delay of short duration or few days, for to the
former doctrine of prejudice is attracted whereas to
the latter it may not be attracted. That apart, the
first one warrants strict approach whereas the
second calls for a liberal delineation.
21.9 The conduct, behaviour and attitude of a party
relating to its inaction or negligence are relevant
factors to be taken into consideration. It is so as the
fundamental principle is that the courts are required
to weigh the scale of balance of justice in respect of
both parties and the said principle cannot be given a
total go by in the name of liberal approach.
21.10 If the explanation offered is concocted or the
grounds urged in the application are fanciful, the
courts should be vigilant not to expose the other side
unnecessarily to face such a litigation.
21.11 It is to be borne in mind that no one gets
away with fraud, misrepresentation or interpolation
by taking recourse to the technicalities of law of
limitation.
21.12 The entire gamut of facts are to be carefully
scrutinized and the approach should be based on the
paradigm of judicial discretion which is founded on
objective reasoning and not on individual perception.
21.13 The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude."
[underlines supplied]
8. In Rafeek and another v. K. Kamarudeen and
another [2021 (4) KHC 34] a Division Bench of this Court
held that, though the expression 'sufficient cause' employed in
Section 5 of the Limitation Act, 1963 is adequately elastic to
enable the courts to apply the law in a meaningful manner,
which subserves the ends of justice, as held by the Apex
Court in Katiji [(1987) 2 SCC 107], the concept of liberal
approach has to encapsulate the conception of reasonableness
and it cannot be allowed a totally unfettered free play, as held
by the Apex Court in Esha Bhattacharjee [(2013) 12 SCC
649]. Inordinate delay, which attracts doctrine of prejudice,
warrants strict approach, whereas, a delay of short duration
or few days, which may not attract doctrine of prejudice, calls
for a liberal delineation.
9. The petitioner seeks leave to assail a judgment of
acquittal. The impugned judgment was rendered on the
premise that there was absolutely no evidence to prove
deception in the matter of execution of the agreement for
sale. Evidence to prove commission of the offence of cheating
and misappropriation of criminal breach of trust was found
lacking. When such findings which resulted in the acquittal of
the 2nd respondent are sought to be assailed by the petitioner,
and the delay is inordinate, the question of condonation of
delay requires a strict approach. The reasons stated for
condonation of the delay are not substantiated. The flood that
occurred in August, 2018, which lasted for a few days cannot,
in the facts and circumstances of this case, be the reason to
condone the delay of 554 days.
Hence, this petition is dismissed.
Crl.M.A.No.1 of 2022, which is a petition for condonation
of delay, is dismissed. Consequently this petition for leave is
also dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr/pv
APPENDIX OF CRL.L.P. 226/2023
PETITIONER ANNEXURES
Annexure1 CERTIFIED COPY OF JUDGMENT IN CC
820/2008 ON THE FILE OF JFCM - I,
KOLLAM
