Delhi District Court
vs Shri Jatin Walia on 11 September, 2009
1
IN THE COURT OF SHRI DILBAG SINGH: ADDITIONAL SESSIONS
JUDGE01(E): KARKARDOOMA COURTS : DELHI.
Cr/21/09
Shri Jitender Munjal
S/o Late Sh. Harbans Lal,
R/o E03, Inderprastha Apartments,
Plot no.114, I.P. Extension, Delhi.
Petitioner
versus
Shri Jatin Walia
S/o Sh. Dalip Walia
R/o 1960A, Pkt B, Mayur Vihar (PhaseIII),
Delhi92.
Respondent
ORDER:
1. This revision petition involves a question as to whether the technicalities of law should be permitted to shut the doors of justice to a sufferer at the threshold. A poor teacher is involved in this case who left the fate of his complaint case entirely on his advocate. He met with an accident in the meantime. He was not aware about the intricacies of the law and thought that board examinations were more important than his personal case. In the process his complaint containing the allegations that he was cheated by one Sh. Jatin was dismissed. A hard earned sum of Rs. 3 lacs was usurped by Sh. Jatin as per the allegations. Sh. Jatin had misrepresented that he was allotee of plot no. 451, Niti Khand II, Indrapuram, Ghaziabad. That when the original 2 papers were asked. Sh. Jatin failed to show the documents. On inquiry it was revealed that property in question was allotted to one Sh. Jagat Arora and not to Sh. Jatin. That despite these facts Sh. Jatin refused to return the amount of Rs. 3 lacs and the complainant approached the police but of no avail. Ultimately complaint case was filed by the complainant.
2. Arguments were heard on the revision petition. Sh. Arun Birbal for the revisionist has argued that revisionist be not deprived of his legal remedies at the threshold on technical reason of dismissal of complaint and limitation. He has placed his reliance on AIR 1987 SC 1353, AIR 1998 SC 3222, 1995 Cr.LJ 1211, AIR 1989 Madras 237, AIR 1982 Gujarat 96, AIR 1989 Gujarat 227, AIR 1999 Bombay 235, AIR 1997 Rajasthan 134, AIR 2007 Sikkim and has requested for condonation of delay on the basis of the mandate of above judgments. He has also submitted that revisionist is a very poor school teacher and mercy be shown to him.
3. I have carefully perused the records of the case and considered the submissions. I deem it pertinent to mention that although state has not been made a party in the revision petition, Ld Public Prosecutor Sh. R.K. Pandey has submitted that he has no objection if the delay is 3 condoned and complaint is restored to its original number.
4. Firstly I am taking the condonation of delay aspect. Section 473 Cr PC is the relevant section in this regard which is being reproduced for the sake of convenience: "Extension of period of limitation in certain cases. Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice."
5. Hon'ble High court of Delhi in Sanjay Gupta Vs State reported in 2004 Cr LJ 485 and in GD Ayyar & Ors Vs State reported in 1978 Cr LJ 1180 has explained about the condonation of delay aspect. This aspect has also been explained in State of Himachal Pradesh Vs Tara Dutt 2000 Cr LJ 485 and Vinayak Steel Ltd. Vs State of AP. A bare perusal of section 473 Cr PC reveals that delay can be condoned in two circumstances which are independent of each other. First circumstance under which delay can be condoned is that if delay has been properly explained then it can be condoned. Secondly delay can also be condoned if it is necessary to do so in the interest of justice. 4
6. In the present case I deem it expedient to deal with the second clause first as far as filing of revision petition belatedly is concerned. The reason for doing so is that complainant in the present case is a poor teacher and a victim of circumstances. Refusal to condone the delay in this case will definitely be against the interest of justice as a poor teacher whose hard earned money of Rs. 3 lacs has been usurped, as per the allegations, will be a looser and a wrong doer will be benefited. Reliance of Ld counsel on the judgments referred supra is appropriate. Hon'ble Supreme Court in AIR 1987 SC 1353 has given the apposite guidelines and I deem it expedient to reproduce the same :
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 condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
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 nondeliberate delay. 5
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 capable of removing injustice and is expected to do so.
7. The above guidelines particularly guideline no. 4 and 6 incline me to hold that it is in the interest of justice to condone the delay. Section 473 Cr PC was not in the earlier code and it was inserted only in order to compel the prosecution agency to file the challans in time. In view of this being the situation, the general principles of civil law can be made applicable when a complainant comes before the court and for that reason mandates of Hon'ble Supreme court and Hon'ble High Court relied upon by Sh. Arun Birbal concerning civil cases can also be taken help of. In view of the fact that substantial justice will suffer in present case if delay is not condoned. I deem it expedient to condone the delay.
8. At the cost of repetition I observe that complainant is a poor teacher and a sufferer in this case and I deem it expedient to condone the delay in this case by treating it as a special case.
9. Coming to explanation of the revisionist on delay aspect.
10. Medical papers produced by the revisionist and the simple and 6 straightforward explanation given by the revisionist inclines me to hold that delay has been satisfactorily explained. I am taking a pragmatic approach by taking a clue from guideline no. 3 given in AIR 1987 SC 1353 and quoted in para 6.
11. Another reason to condone the delay is that there is no limitation prescribed for an offence u/s 420 IPC and for that reason no prejudice is going to be caused to Sh. Jatin Walia. So delay is condoned on this account also.
12. In my considered view revisionist has succeeded in giving a plausible explanation concerning condonation of delay. It is well settled that a pedantic approach is not to be taken while considering applications for condonation of delay, particularly, in cases where substantial justice will suffer. It is well settled that a poor litigant should not suffer on account of his ignorance and on account of mistake of his counsel. A perusal of the order sheets of the complaint case goes to show that revisionist / petitioner is a simple straightforward person and does not know the intricacies of law. The case of the complainant is at very initial stage and he may or may not get the relief of summoning of the respondent on merits as so putforth by Sh Arun Birbal. So taking an overall view of the facts and circumstances of the case, I deem it 7 expedient to condone the delay for the reason that same has been properly explained.
13. Coming to the question of dismissal by Ld. MM of the complaint. Perusal of trial court record reveals that complainant appeared in the court on 31.08.04. He also appeared on 06.09.04. Ld. MM had fixed the case for arguments on 16.09.04 as well as 06.10.04. On 06.10.04 request u/s 156 (3) Cr PC was declined and case was put up for CE. Thereafter complainant appeared on some occasions. He moved an application dated 22.9.05 for preponment of the case in which it stands mentioned that due to some inadvertance, evidence could not be recorded on 06.09.05 despite the fact that complainant was present. Application for summoning of the official witnesses stand moved by the complainant. Summons to the witnesses also stand issued. Reasons were asked by the Ld MM on 06.09.05 from the complainant concerning his absence and court was satisfied and case was fixed for 25.01.06. Complainant showed his sincerity concerning perusal of the complaint by moving an application for preponment. In between case was transferred to other court and complainant appeared thereafter also. On 19.12.07 Ld. Presiding officer was on leave and case was fixed for 12.5.08. On 12.05.08, complainant was not present and 8 complaint was dismissed.
14. I am of the considered view that in view of the nature of the case, Ld MM should have exercised the second option of adjournment provided u/s 256 Cr PC instead of dismissal of the case, in view of the previous record of the complainant who was pursuing his complaint seriously. It is well settled that law should help the genuine and bonafide persons. A sympathetic approach should be shown to the victims and an iron hand be used against the violators of the law. In the present case, as per the allegations of the complaint, complainant is the victim and the respondent in the original complaint is a violator of law. So I deem it expedient to set aside the order dated 12.05.08 of Ld. MM in this regard.
15. Hon'ble High Court of Delhi has laid down the law concerning dismissal of complaint u/s 256 Cr PC and reversal of the order in Shiv Kumar Vs Mohd Sagir and others reported in 1997 (1) Civil Court cases 371 (Delhi)=1997 Cr.L.J 1264 Manish Trading company Vs State and others 2001 Cr L.J 2718, S Anand Vs Vasumathi Chandersekhar 2008 Cr.L.J 1943, Gurdeep Singh vs State of Haryana 2001 Cr.L.J 2378. I am also referring to the latest mandate of Hon'ble High Court in Cr. A.No. 131/08 in Citi consumer finance India Ltd Vs 9 Jasbir Singh decided on 05.09.08 as reproduced in 2009 (157) DLT 252:
"Merely absence of a complainant on the date of hearing cannot be a ground to dismiss the case in a routine manner. Absence on a solitary occasion or on an occasion when presence of complainant was not necessary does not call for dismissal of complaint unless the court is of the opinion that the complainant has been trying to protract the matter or adopting dialotry tacts to harass the accused. If the presence of the complainant is not necessary on the date of hearing then it would be proper for the Magistrate to adjourn the case to some other date rather than dismiss the case u/s 256 Cr.P.C".
16. In view of the foregoing discussion, I deem it expedient to set aside the order dated 12.5.2008. Ld MM is directed to restore the complaint to its original number. TCR be sent back. Revision file be consigned to Record Room. Revisionist is directed to appear before the Ld trial court on 24.09.09.
Announced in open court (Dilbag Singh)
Dated:11.9.2009 Additional Sessions Judge01 (E)
Karkardooms Courts, Delhi.