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Judgment
H.B. Antani, J.—Heard learned advocate, Ms. S.M. Ahuja for the applicant, learned advocate, Shri P.R. Abhichandani with Shri Harin P. Raval and learned APP, Shri A.J. Desai for the Respondent-State.
This is an application preferred u/s 5 of the Limitation Act for condonation of delay of 5185 days in filing restoration application being Criminal Misc. Application No. 3403 of 2008 in Criminal Revision Application No. 191 of 1990. It is submitted that the husband of the applicant, Mahesh Kantilal Soni, who is the original accused in criminal case No. 1208 of 1985 in the Court of learned J.M.F.C. (Joint Court), Ahmedabad (Rural), who came to be convicted for the offence punishable u/s 135-A of the Customs Act, 1962 and sentenced to undergo R.I. for 3 years and pay fine of Rs. 5,000/- in default S.I. for six months by judgment and order dated 25-10-1988. Thereafter, the applicant preferred Criminal Appeal No. 40 of 1988 against the order of conviction before the learned Sessions Court at Ahmedabad (Rural), Mirzapur. The said appeal being Criminal Appeal No. 40 of 1988 came to be dismissed by order dated 14-6-1990. The husband of the applicant preferred Criminal Revision Application No. 191 of 1990 before this Court. The revision was admitted by order dated 5-9-1990. The husband of the applicant was enlarge on bail at the time of the admission of the revision application and direction was given by the Court to the learned advocate of the applicant to remove office objections in the matter, failing which, the matter will stand dismissed for default. However, the learned advocate for the applicant could not remove the office objections and therefore, the revision application No. 191 of 1990 was dismissed on account of the failure of the learned advocate to remove office objections within stipulated time. The bail bond of the husband of the applicant also came to be cancelled by order dated 13-12-1995.
It is submitted that the husband of the applicant had engaged a Lawyer, Shri R.J. Trivedi, for conducting the revision application and he was under the bona fide impression that proper care was taken by his advocate.
However, it is submitted that the learned advocate never informed with regard to the order passed by this Court dated 9-11-1993 regarding the removal of office objections nor informed about the order passed by this Court subsequently on 13-12-1995 by which the Court cancelled the bail bonds of the applicant. As per the submission made in the application, the learned advocate by letter dated 10-10-1995 written to the husband of the applicant had stated therein that revision application was pending before the Court and listed for final hearing on the Board.
Thus, the applicant was having bona fide impression that revision application was not heard and disposed of. It is submitted that the husband of the applicant was suffering from cancer and was required hospitalisation for taking urgent treatment. He ultimately expired on 2-3-1996 at M.P. Shah Cancer Hospital, Ahmedabad. The husband of the applicant never knew that the revision application was dismissed for default on account of the non removal of office objections, and the applicant and the husband of the applicant were under the impression that the matter was pending before the High Court.
In view of the aforesaid facts and circumstances and due to the bona fide mistake, the restoration application could not have preferred in time. The applicant for the first time when she received the notice u/s 6(1) of SAFEMA Act by the Competent Authority dated 22-12-2007 came to know that revision was dismissed for default on 2-12-1993. However, the present applicant came to know about the order of dismissal of the revision application only on 14-3-2008. Immediately thereafter, she approached the Hon''ble High Court by preferring restoration application being restoration application No. 3403 of 2008; wherein, the delay of 5215 days has been caused in preferring the said restoration application.
The learned advocate representing the applicant submitted that under the circumstances narrated in the application, the applicant was prevented by sufficient cause from preferring the restoration application and as the bona fide mistake was committed by the applicant, lenient view is required to be taken in the matter and the delay caused in preferring the restoration application deserves to be condoned. Learned advocate submitted that even in large number of decision rendered by the Apex Court as well as by this Court, it is held that liberal view is required to be taken in the matter, if the bona fide mistake is committed by the applicant in preferring the application. The learned advocate has placed reliance on following judgments, they are as under:
(1) In the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others,
(2) In the case of State of Haryana v. Chandra Mani and Ors. 1996 (5) Supreme 75.
(3) In the case of Chhaga Ramabhai and Ors. v. Heirs of Chhotabhai and Anr. 1994 (1) G.L.H. 16.
(4) In the case of State of Gujarat and Ors. v. Legal Heirs of Ismali H. Ranza and Ors. 1999 (2) GCD 1290 (Guj.).
(5) In the case of Gangadhar Yashvant Ramekar v. Mukeshbhai B. Shah and Ors. 1999 (2) GCD 1292 (Guj.)
(6) In the case of N. Balakrishnan Vs. M. Krishnamurthy,
(7) In the case of Ganeshprasad Badrinarayan Lahoti (D) by LRs. Vs. Sanjeevprasad Jamnaprasad Chourasiya and Another,
(8) In the case of Bhagmal Vs. M.P. Cooperative Marketing and Consumer Federation Ltd. and Others,
(9) In the case of Madan Lal Kapoor Vs. Rajiv Thapar and Others,
In support of the submissions made at the bar. The learned advocate submitted that considering the proposition laid down in these judgments, liberal view is required to be taken in the matter and delay caused in preferring the restoration application be condoned. It has been contended by the learned advocate that revision application preferred by the co-accused is pending before this Court and therefore, the present applicant should also be given an opportunity to present his case before the Court by condoning the delay of 5215 days in preferring the restoration application.
The learned advocate, Shri P.R. Abhichandani, on behalf of the Respondent No. 1 submitted that delay of 5215 days has not been properly explained. On bare perusal of the application, more particularly, paragraph No. 3 of the application, it is stated therein that the order was passed on 9-11-1993 by the Court for removing the office objections and on 13-12-1995, the bail bonds of the applicant was cancelled. It is further stated in paragraph No. 3 that the learned advocate wrote letter dated 10-10-1993; wherein, he stated that revision application was pending before the High Court but the aforesaid fact has not been properly explained by the learned advocate while preferring the application for restoration. The learned advocate further submitted that the applicant has also not explained the delay from 13-12-1995 by which the bail bonds of the applicant was cancelled. Pendency of the revision application of the co-accused would have no consequence if the applicant has not explained the delay for restoring the main matter and therefore, the application does not call for interference and the same is required to be dismissed.
In view of the aforesaid facts and circumstances of the case, delay, which was caused in preferring restoration application, has not been sufficiently explained. As no sufficient ground is made out in the application for condonation of delay, the application does not call for any interference and the same is liable to be rejected.
The learned advocate representing the State submitted that as the delay has not been properly explained in the application, the same does not call for any interference and application required to be rejected.
I have heard learned advocate, Ms. S.M. Ahuja for the applicant, learned advocate, Shri P.R. Abhichandani with Shri Harin P. Raval and learned APP, Shri AJ. Desai for the Respondent-State at length and in great detail.
The learned advocate has preferred the application for restoration of the Criminal Misc. Application No. 3403 of 2008 preferred in Criminal Revision Application No. 191 of 1990; wherein, the delay of 5215 days has been caused. The husband of the present applicant the original accused in Criminal Case No. 1208 of 1985 in the Court of learned JMFC, Ahmedabad (Rural) was convicted for the offence punishable under Sections 135-A of the Customs Act, 1962 and sentenced to undergo R.I. of 3 years and pay fine of Rs. 5,000/- in default S.I. of 6 months by judgment and order dated 25-10-1988. He, thereafter, preferred the Criminal Appeal No. 40 of 1988 which was dismissed by the learned Judge by order dated 14-6-1990. Being aggrieved by the aforesaid order the husband of the applicant preferred Criminal Revision application No. 191 of 1990 before this Court and the same was admitted by order dated 5-9-1990 and the husband of the applicant was directed to be enlarge on bail. At the time of the admission of the revision application, the Court directed the advocate of the applicant to remove office objections in the matter, failing which, the matter would stand dismissed for default. However, the learned advocate for the applicant could not remove the office objections in the Criminal Revision application No. 191 of 1990 and therefore, the Criminal Revision was dismissed on account of the non removal of office objections. Subsequently, the bail bond of the applicant''s husband was cancelled by order dated 13-12-1995. It has been strenuously urged by the learned advocate for the applicant that she was prevented from preferring the application in time due to the circumstances which were beyond her control. It has been urged by the learned advocate that her husband was suffering from cancer and was admitted in the Hospital for taking the immediate treatment. The Lawyer representing the husband of the applicant on 10-10-1995 submitted in his letter that the revision was pending before this Court and therefore, the applicant was under the bona fide impression that revision was not disposed of.
However, subsequently she came to know that revision was dismissed and therefore, immediately, the restoration application was filed. However, considering the averments made in paragraph No. 3 of the application, it becomes clear that the Court passed the order on 9-11-1993 and the advocate representing the applicant informed the applicant on 10-10-1995 that revision was pending before this Court.
In view of the aforesaid averments, delay, which was caused even for a period of 2 months i.e. from 13-12-1995 to 10-10-1995 requires to be explained but the same has not been explained and no reasons are assigned for the delay which was caused for a period of nearly 2 months. Apart form that even the delay from 13-12-1995 till about the time of the death of the husband has not explained. It has been contended by the learned advocate on behalf of the applicant that since the revision application preferred by co-accused is also pending, she may also be given opportunity to present a case before the Court and the delay caused in filing revision application be condoned.
However, in view of the non-explanation of the delay as mentioned herein above, the prayer made by the learned advocate to condone the delay cannot be acceded.
I have also considered the judgment cited by the learned advocate at the Bar and there is no dispute about the ratio or proposition laid down this judgment. However, considering the facts and circumstances of the present case, since the delay has not been properly explained, no interference is called for in the application preferred by the applicant and it is liable to be rejected.
For the foregoing reasons, the application is hereby rejected. Rule is discharged.