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Judgment
Gita Gopi, J
Order in Criminal Misc. Application (For Condonation of Delay) No. 1 of 2023:
By way of this application under Section 5 of the Limitation Act, 1963, the applicant has prayed for condonation of delay of 1364 days caused in preferring the revision application.
Heard the learned advocate for the applicant. He submits that dispute between the parties was resolved, however, the applicant – accused could not inform the Court and got the order set aside nor could he challenge the same in time. The learned advocate for the applicant submitted that the applicant- accused is doing fishing work and always remains in high sea, almost for 7-8 months and therefore, he could not timely secure the documents to challenge the concurrent findings of conviction and sentence, which led to delay in filing the revision application.
In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others, AIR 1987 SC 1353 it has been observed as under:
“3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. 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. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
Ordinarily a litigant does not stand to benefit by lodging an appeal late.
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.
"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.
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 non-deliberate delay.
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.
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.”
Having heard the learned advocate for the applicant and considering the averments made in the application and as the delay is sufficiently explained and in view of the facts and circumstances of the case of the case, the delay caused in filing the revision application deserves to be condoned and is hereby condoned.
The application is allowed accordingly.
Order in Criminal Revision Application:
Learned advocate Mr. Divyang Joshi has instructions to appear for the respondent No. 1 – original complainant. He shall file his appearance in due course.
Heard, the learned advocate for the respective parties.
Challenge in this revision application at the instance of the applicant – accused is given to the concurrent findings of the learned Courts below of conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).
Rule. Learned advocates for the respective respondents waive service.
Learned advocate Mr. Chintan Popat for the applicant states that actually, the cheque amount had already been paid to the original complainant but the said fact could not be made known to the learned Court and as the applicant always remains in the high sea for fishing work, he could not timely prefer the revision application. He relied on the affidavit of respondent No. 1 – original complainant to state that the complainant has also affirmed the settlement and of receipt of the money.
5.1 Respondent No. 1 – Sirinben Gulamhusain Halani – original complainant is present before the Court and is identified by learned advocate Mr. Divyang Joshi. The learned advocate for the respondent No. 1 – original complainant states that the complainant has received the money and the complainant does not want to pursue the matter now in view of amicable settlement and has given consent for compounding the offence. The complainant also files an affidavit to that effect, which is on record.
Since, the total cheque amount has been received by the complainant and the complainant has given consent for compounding the offence, keeping in mind the object of Section 147 of the NI Act, which is an enabling provision which provides for compounding the offence and may require the consent of the aggrieved for compounding the offence, however, the specific provision under Section 147, inserted by way of amendment towards special law, would give overriding effect to sub-section (1) of Section 320 Criminal Procedure Code, 1973 (CrPC) as has been observed in the case of Damodar S. Prabhu v. Sayed Baba Lal, AIR 2010 SC 1907. Accordingly, as the dispute has been resolved and the total cheque amount has been paid to the complainant, in consonance with the object of the NI Act and the provisions under Section 147 thereof, the matter is considered as compounded.
In aforesaid view of the matter, the judgment and order passed by the learned trial Court of conviction and sentence for the offence punishable under Section 138 of the NI Act, as affirmed by the learned appellate Court, are quashed and set aside. The applicant stands acquitted. The present revision application is allowed in the above terms. Rule is made absolute accordingly.