Mrs.K. Nandhini @ Nithiya vs Mr. G. John Lourduraj
2023 Latest Caselaw 7327 Mad

Citation : 2023 Latest Caselaw 7327 Mad
Judgement Date : 30 June, 2023

Madras High Court

Mrs.K. Nandhini @ Nithiya vs Mr. G. John Lourduraj on 30 June, 2023

                                                                                 Crl.R.C.No.991 of 2023



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED 30.06.2023

                                                         CORAM

                                  THE HONOURABLE Mr. JUSTICE V. SIVAGNANAM

                                             Crl.R.C.No.991 of 2023 &

                                              Crl.M.P.No.8811 of 2023


                      1. Mrs.K. Nandhini @ Nithiya                                   ... Petitioner
                                                           Vs.

                      1. Mr. G. John Lourduraj
                      2. The State, represented by the
                         Public Prosecutor,
                         The Nilgiris District,
                         Udhagamandalam                                            ... Respondents

                          Criminal Revision filed under Section 397 and 401 of Cr.P.C., to set aside
                the order passed in Crl.M.P.No.836 of 2022 in Crl.A.(SR) No.1133 of 2022,
                dated 08.11.2022 by the           Sessions Division of the Nilgiris District at
                Udhagamandalam by allowing the Criminal Revision.
                                          For Petitioner   : Mr. J.Franklin

                                          For Respondent : Mr.R.Vinothraja
                                                           GA (crl.side)

                                                      ORDER

This criminal revision has been filed challenging the order passed in

C.M.P.No.836 of 2022 in Crl.A.SR.No.1133 of 2022, dated 08.11.2022 by the

learned Sessions Judge, Udhagamandalam, Court of Sessions Division of the

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Crl.R.C.No.991 of 2023

Nilgiris District at Udhagamandalam in and by which, the learned Sessions

Judge has dismissed the application filed by the petitioner under section 5 of

Limitation Act to condone the delay of 62 days in filing the appeal against the

order in STC.No.31/2019, dated 21.04.2022 on the file of Judicial Magistrate,

Conoor.

2. The learned counsel appearing for the petitioner submitted that the

petitioner is an accused in STC.No.31/2019. The respondent filed a complaint

against the petitioner/accused for the offence under section 138 of Negotiable

Instruments Act and the same was taken on file in STC.No.31/2019 by the

Judicial Magistrate Fast Track Court, magisterial Level, Coonoor. After trial,

the petitioner was found guilty and was convicted and sentenced by the trial

court. Aggrieved over such conviction and sentence, he filed appeal before the

Sessions Judge, Udhagamandalam, Court of Sessions Division of the Nilgiris

District at Udhagamandalam with a delay of 62 days. On 20.10.2022, the

condonation of delay petition was allowed on payment of cost of Rs.7,500/- to

the respondent. Since the petitioner failed to pay the cost, the petition seeking

condonation of delay was dismissed by the court below on 8.11.2022. The

learned lower appellate Judge dismissed the said application on the ground that

the petitioner called absent and condition not complied with. He further

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Crl.R.C.No.991 of 2023

submitted that the appellate court, without considering the fact as well as legal

principle that the appeal is a statutory right and it cannot be curtailed on the

ground of technicalities. In the circumstances, he seeks to set aside the

impugned order and allow the revision

3. Though notice served on the 2nd respondent/complainant and his name

being printed in the cause list, there is no representation for him either in person

or through counsel, when the matter is called.

4. Heard the learned Govt. Advocate (crl.side) appearing for the 2nd

respondent.

5. I have gone through the affidavit and petition filed by the petitioner

before the trial court and the impugned order. Admittedly, the

petitioner/accused was found guilty by the Judicial Magistrate Fast Track Court

at Magisterial Level, Coonoor and he was convicted for the offence under

section 138 of Negotiable Instruments Act. Against such conviction, the

petitioner filed an appeal with a delay of 62 days and also filed an application

for condoning the delay of 62 days in filing the appeal. The learned Sessions

Judge on 20.10.2022 allowed the said application on payment of cost of

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Crl.R.C.No.991 of 2023

Rs.7,500/- to the respondent on or before 07.11.2022. Since the petitioner failed

to comply with the order dated 20.10.2022, the delay condonation petition was

dismissed. It is the statutory right of the accused to file appeal. It has to be

given effect and on the basis of technicalities of delay in filing the appeal, the

right of the petitioner to appeal cannot be curtailed.

6. It is relevant to note that in the judgment of the Honourable Supreme

Court reported in the case of State of Odisha Vs. Suendra Munda [2020

16 SC page 443], wherein, it has been held as follows;

'4. In a criminal matter, where the life and liberty of a person is in question, one's right of appeal has always been accepted and appropriate steps must be taken to effectuate that right. The considerations on account of delay and limitation ought not to negate the right of appeal inhering in an accused.'

From the principle laid down by the Hon'ble Apex Court, it is clear that on the

ground of delay in preferring appeal, one's right of appeal cannot be negated.

7. Considering the principle stated by the Honourable Supreme Court

and also the fact that the petitioner is ready comply with the condition imposed

by the appellate court, dated 20.11.2022, I am inclined to condone the delay of

62 days in preferring the appeal before the court below.

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Crl.R.C.No.991 of 2023

8. In view of the foregoing discussions, the petitioner is hereby directed to

comply with the condition imposed by the appellate court dated 20.11.2022 and

to pay the cost of Rs.7,500/- to the respondent within a period of two weeks

from the date of receipt of a copy of this order. On complying with the

condition, the delay is condoned and the appellate court is directed to take the

appeal on its file and decide the same on merits and in accordance. In the event