Mr. Chaudhary Satyendra Singh vs Mr. Prasad Kamat

A. P. Lavande, J.—Heard Mr. Costa Frias, learned Counsel for the applicant and Mr. Lawande, learned Counsel for the respondent. By this application, the applicant seeks condonation of delay of 26 days in filing Special Leave to Appeal/ Appeal against the judgment and order dated 18th August, 2010 passed by the Judicial Magistrate, First Class, Panaji in OA Case No.1262/2008/B.

The applicant filed the above criminal case against the respondent for dishonour of cheque dated 6th October, 2008 for an amount of Rs. 3 Lacs. By judgment and order dated 18th August, 2010, the learned Magistrate acquitted the respondent for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (''''The Act'' for short).

It is the case of the applicant that he applied for the certified copy of the judgment on 6th October, 2010 and the same was ready on 8th October, 2010 and delivered on the same day. Special Leave to Appeal/ Appeal had to be filed by 15th October, 2010. However, he believed bonafidely that the period of appeal was 90 days and it is further his case that he did not have all the relevant papers.

According to the respondent, the certified copy was applied for by the Advocate for the applicant and not by the applicant.

In additional affidavit dated 21st March, 2011, the applicant has stated that he had applied for certified copy of the order after delay of 30 days as the Advocate in the trial Court had assured him that he would apply for the same, but he failed to do so.

According to Mr. Costa Frias, the applicant has made out sufficient cause since the applicant believed bonafidely that the period for filing Special Leave to Appeal/ Appeal was 90 days and not 60 days. Learned Counsel further submitted that mistake of Counsel or party in calculating the period of limitation would furnish sufficient cause for condoning the delay. In support of his submissions, learned Counsel relied upon the following judgments :

(i) M/s. Concord of India Insurance Co. Ltd. Vs. Smt Nirmala Devi and others; AIR 1979 SC 1666.

(ii) Central Bank of India Vs. Devdatt Shukla and Another, .

Per contra, Mr. Lawande, learned Counsel for the respondent submitted that the applicant has made a false statement for seeking condonation of delay and the respondent is not entitled to condonation of delay although the period is only of 26 days. He further submitted that the applicant has unnecessarily tried to put blame on his Advocate for not applying the certified copy of the judgment and order of the learned Magistrate when in fact the record discloses that it was his Advocate who filed the application for certified copy of the impugned judgment and order. In support of his submission, he relied upon the judgment in the case of Pundlik Jalam Patil (D) by Lrs. Vs. Exe. Eng. Jalgaon Medium Project and Another, .

Having considered the rival submissions and having perused the record, I am of the considered opinion that the delay of 26 days in filing Special Leave to Appeal / Appeal deserves to be condoned. It is well settled by a catena of decision of the Apex Court that term ''sufficient cause'' has to be liberally construed. It is the case of the applicant that he bonafidely believed that the period for filing Special Leave to Appeal/ Appeal was 90 days and not 60 days and, therefore, delay of 26 days in filing Special Leave to Appeal/ Appeal deserves to be condoned.

The application has been primarily opposed on the ground that the applicant has made a false statement by placing reliance upon the judgment of the Apex Court in Pundlik Patil (supra). In the said case, the Apex Court set aside the order passed by the Division Bench of this Court granting condonation of delay of 1724 days in filing the appeal. The Apex Court observed in the said case that in application filed on behalf of the acquiring body, the acquiring body had made a false statement that the acquiring body was unaware about the stand taken by the Special Land Acquisition Officer as well as the impugned judgment and award. The Apex Court observed that the acquiring body was informed about the award of the Reference Court by the Law and Judiciary Department. In this factual background, the Apex Court held that delay ought not to have condoned since false statement was made by the acquiring body in order to seek condonation delay.

In the present case, it is the case of the applicant that he bonafidely believed that the period of limitation is 90 days and not 60 days. There is no evidence brought on record to discredit this version of the applicant. No doubt the applicant, initially, stated that he had filed an application for certified copy of the impugned judgment and order and record discloses that it was his Advocate who had filed an application for certified copy of the impugned judgment and order, but this fact by itself would not be sufficient to dismiss the application for condonation of delay in filing Special Leave to Appeal/ appeal. In my opinion, the respondent can be well compensated by awarding appropriate costs.

In view of the above, the application is allowed. Delay of 26 days in filing Special Leave to Appeal/ Appeal is condoned subject to the applicant paying costs of Rs.1,500/-to the respondent, within a period of four weeks. The application stands disposed of.