Delhi District Court
Jai Pal vs The State (Nct Delhi) on 18 February, 2012
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ASJ02/SE/SAKET COURT
NEW DELHI
IN RE: Criminal Appeal No. 29/11
ID No: 02406R0315292011
Jai Pal
S/o Sh. Phoola Ram
R/o BH66, Madangir,
New Delhi110062. ..... Appellant
VERSUS
1.The State (NCT Delhi)
2. M/s Eclear Leasing & Finance (P) Ltd.
5/83, DDA Flats, Madangir,
New Delhi110062.
Through its Director: Sunita Sharma. ..... Respondents
__________________________________________________________
Date of Institution : 19.12.2011
Date when the arguments were heard : 17.02.2012
Date of judgment : 18.02.2012
J U D G M E N T
This is an appeal under Section 374 (3) of the Code of Criminal Procedure, 1973 directed against judgment dated 30.10.2011 and order on sentence dated 31.10.2011 passed by MM, New Delhi in Criminal complaint case no.1537/1/06.
Aforementioned was a complaint under Section 138 of The Negotiable Instrument Act, 1881 (in brief NI Act). As per its case, the CA No. 29/11 1/5 complainant is a non banking financial company, approved under the Rules and Regulations of Reserve Bank of India Act. Same is engaged in financial services. Accused approached the complainant and requested for a loan of Rs.1.00 lac, which was disbursed to the latter through cheque bearing no. 525011 dated 11.12.2005 drawn on Vijaya Bank, Greater Kailash PartII, New Delhi. After making some payments, accused defaulted in paying EMIs. The complainant approached accused for repayment. The accused gave a cheque no. 225639 dated 12.07.2006 for a sum of Rs.1,07,000/ drawn on Central Bank, Air Force Station, New Delhi towards full and final settlement of his legal liabilities. Said cheque was dishonoured by the banker of accused on its presentation with remarks 'insufficient fund'. Cheque was returned back uncashed vide memo dated 26.07.2006. Complainant served a legal notice dated 03.08.2006, to the accused through registered letter and UPC demanding payment of amount of cheque within 15 days from the receipt of legal notice, but no such amount was paid.
After trial, the appellant was found guilty for offence punishable under Section 138 of the NI Act. Same was also sentenced for six months simple imprisonment and was directed to pay a sum of Rs.1,50,000/ to the complainant as compensation. In default, the appellant/accused was directed to undergo three months simple imprisonment more.
CA No. 29/11 2/5
The memorandum of appeal is accompanied by an application under Section 5 of the Limitation Act. As mentioned above, appellant in this case was convicted to simple imprisonment for six months and was directed to pay a sum of Rs.1,50,000/ to the complainant as compensation. As per Article 115 of the Schedule annexed with the Limitation Act, 1963, appeal in such a case was to be filed within 30 days from the date of sentence or order. Needless to say that impugned judgment and order are dated 30.10.2011 and 31.10.2011 respectively and appeal in hands was filed on 19.12.2011.
It is submitted by Ld. Counsel for the appellant that the latter is an old person aged about 61 years. Same is illiterate and hence was not aware about the period of limitation within which appeal was to be filed. Contending all this, Ld. Counsel requested for condonation of delay in filing appeal.
On the other hand, it is contended by Ld. Addl. PP that the appellant had no case at all and hence deliberately did not file appeal in time. Same was gaining time, otherwise he had no merit in his case.
Section 5 of The Limitation Act prescribes for extension of period of limitation in certain cases. As per it, any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal ..... within such CA No. 29/11 3/5 period.
The only plea of applicant/appellant is that same being an illiterate and old person could not file appeal in time. Public policy demands that laws of land should be followed strictly. A litigant can not claim extension of limitation, even for a single day, as a matter of right. Section 5 of the Act, gives discretion to court to grant extension, only if a party satisfies the court that same had "sufficient cause" to extend the time of limitation. Explaining the "sufficient cause" it was held by a full bench of Punjab and Haryana Court in case titled as Latawanti (Smt.) Vs. State of Haryana AIR 1995 P&H 32 (FB) that the sufficient cause within the meaning of Section 5 of The Limitation Act must be a cause beyond the control of the party, invoking the aid of the Section and the test to be applied would be to see as to whether it was a bonafide cause in as much as nothing could be considered to be bonafide, which is not done with due care and attention.
In MDTP Transport Corporation Vs. K C Karthiyayimi AIR 1995 Madras 102, it was held by the Madras High Court that condonation of delay is not a matter of right and the litigant, who comes to court after the prescribed period of limitation, has to satisfy the court that he has sufficient cause for the delay.
Even our own High Court held in a case titled as Democratic Builders Vs. Union of India AIR 1993 Delhi 132 that when no cogent CA No. 29/11 4/5 and sufficient reasons have been assigned for the delay nor delay of certain period has been explained, the delay cannot be condoned. Explaining as what was sufficient cause our High Court was also of opinion that sufficient cause contemplated by Section 5 of The Limitation Act means a cause beyond the control of the party, invoking the aid of the section.
When the appellant is stated to be a retired government servant, it is not believable that same is illiterate person. Even otherwise, the appellant was represented by a qualified advocate since very beginning i.e. during trial of the case before the court of MM, Delhi as well as before this court. It does not lie in the mouth of appellant to say that being illiterate, he did not know the limitation for filing an appeal. In the same way, it is no reason to condone delay merely because the appellant is a retired government servant. There is no evidence to verify that appellant was ill, infirm or was suffering with senile decease at the relevant time. Simply to be a person aged about 61 years in itself was no ground to condone the delay.
Considering the fact discussed above, I find no reason to condone delay in filing appeal in hands. Application in this regard is thus dismissed.
Announced in the open court (RAJENDER KUMAR SHASTRI)
on 18th February 2012 ASJ02/SE/ SAKET COURT
NEW DELHI
CA No. 29/11 5/5