Madhya Pradesh High Court
Shivraj Singh Chauhan vs Rajendra Kumar Gupta on 7 August, 2015
1
M.Cr.C. No. 3272/2010
Shivraj Singh Chauhan Vs. Rajendra Kumar & anr.
07/08/2015
Shri R.K. Soni, counsel for the petitioner.
Shri Manish Sharma, counsel for the respondent No. 1.
Shri Rajendra Singh Yadav, Public Prosecutor for the respondent No. 2.
Heard on I.A. No. 7952/10 an application under Section 5 of the Limitation Act. Petitioner/complainant filed a criminal complaint against the respondent No.1 under Section 138 of Negotiable Instrument Act for alleged dishonor of cheque dated 07.10.2002 worth Rs. 70,000/- . In Criminal Case No. 4234/2006 before the Special Judicial Magistrate, Morena vide judgment dated 16.08.2007 it was held that the complainant /petitioner have failed to prove his case, hence the accused/ respondent No. 1 has been acquitted under Section 138 of Negotiable Instrument Act. It was also held that within 15 days complainant/petitioner failed to serve notice to accused/ respondent No. 1.
Petitioner/complainant filed Criminal Appeal No. 146/07. The same was decided on 06.04.10 by 3rd ASJ, Morena and it was held that under the provision of 378(4) of Cr.P.C., appellant/petitioner if felt aggrieved, could have approached the High Court, for appeal against acquittal in complaint case 2 M.Cr.C. No. 3272/2010 Shivraj Singh Chauhan Vs. Rajendra Kumar & anr.
lies before the High Court. Without going into the merits of the case the appeal was dismissed.
In this background the present application for "leave to appeal" has been filed under Section 378(4) of Cr.P.C., which is barred by limitation. The petitioner has filed this application under Section 5 of Limitation Act on the ground that by order dated 06.04.2010 the appeal was dismissed, therefore, the applicant claims exemption from the date of judgment pronounced by the JMFC on 16.08.2007 till 06.04.2010 be condoned and subsequently till the date of receiving the certified copy, which was obtained on 14.04.2010. Therefore, condonation is claimed from 16.08.2007 to 19.09.2007. In support of this application, an affidavit has been filed.
Filing reply to the application respondent No. 1 has strongly opposed the same and claimed that the respondent opposed the filing of the appeal at the initial stage, i.e. on 27.04.2007 and the petitioner deliberately did not pay any heed. He prolonged the case for two years with the ulterior motive to delay the proceedings to harass the respondent No. 1, therefore, present application is liable to be dismissed. The applicant has not shown sufficient grounds for condonation of delay. In support of his reply, an affidavit has been filed by the 3 M.Cr.C. No. 3272/2010 Shivraj Singh Chauhan Vs. Rajendra Kumar & anr.
respondent No. 1.
Section 378(4) of Cr.P.C. reads as follows:-
"If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complaint in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court".
It is to be remembered that for an application for grant of leave to appeal from the order of acquittal the limitation is 60 days.
Learned counsel for the respondent No.1 opposing the arguments advanced by the counsel for the petitioner submits that petitioner has deliberately pursued the case before the ADJ, whereas, on the preliminary stage, respondent No.1 opposed the maintainability of the same. Therefore, this petition is liable to be dismissed. Learned counsel for the respondent relied on AIR 1995 Patna 212 and 2014 MPWN (3) Short Note 22.
Needless to mention here that the respondent No.1 made an objection but the final verdict was given on 6.4.2010 by Third ASJ, Morena. Acting upon wrong advice will amount to "sufficient cause" when advice was given bona-fide and 4 M.Cr.C. No. 3272/2010 Shivraj Singh Chauhan Vs. Rajendra Kumar & anr.
after exercise of due care and attention. The appeal was filed by the learned counsel for the appellant/petitioner before ADJ, Morena. On this juncture, it cannot be said that the appeal was filed by ill advice of the learned advocate of the petitioner. As there is no proof of mala-fide, it cannot be said that due care or attention was lacking.
In "Balbir Vs. Bhog Singh reported as AIR 1974 SC 750"
it is held that appellant was prosecuting the appeal before the wrong Court bona fide and matter escaped the scrutiny by office at the time of institution, even the course of hearing before the Court which had no jurisdiction to entertain the case. Therefore, held that appellant has sufficient cause for delay in filing the appeal in proper forum and such delay was condoned under Section 5 of Limitation Act.
Besides, refusing to condone the delay may result on a meritorious matter being throwing out at the threshold and caused justice being defeated. If delay is condoned highest that can happen is that the cause would be decided on merits after hearing the parties.
It is also true that it is well settled principle of law that, judicial discretion is vested with the Court. In considering the question, whether the delay, however, huge may be, rests on 5 M.Cr.C. No. 3272/2010 Shivraj Singh Chauhan Vs. Rajendra Kumar & anr.
the Court and this discretion must be used judiciously. Therefore, discretion is used in favour of the appellant/petitioner.
In view of the above I.A. No.7952/10 is allowed and delay from 16.08.2007 till 13.04.2010 is condoned.
Case be listed after two weeks for hearing on admission.
(S.K. Palo) JUDGE Sateesh