AI Structured Summary
Not yet generated for this judgment
Judgment
A. P. Lavande, J.—Heard Mr. Shivan Desai, learned Advocate for the applicant, Respondent no.1 in person and Mr. C. A. Ferreira, learned Public Prosecutor for the respondent no.2. By this revision application the applicant takes exception to the order dated 6.5.2011 passed by Assistant Sessions Judge, Margao in Criminal Miscellaneous Application no.20/2011 by which an application seeking condonation of delay of four months and twelve days in filing the appeal against Judgment and order of conviction dated 10.11.2010 passed by Judicial Magistrate, First Class at Vasco-Da-Gama in Criminal Case no.1304/OA/NIA/2006/B has been dismissed.
Briefly, the facts leading to filing of the revision application are as under:-
Respondent no.1 filed above criminal case against the applicant herein for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881( "the Act" for short). Respondent no.1 claimed that applicant/accused had issued a cheque for Rs.4,80,000/-dated 30.11.2005 in his favour which was dishonoured. The learned Judicial Magistrate, First Class at Vasco-Da-Gama by Judgment and order dated 10.11.2010 held accused guilty for the offence punishable u/s 138 of the Act and sentenced him to undergo simple imprisonment for one year and to pay compensation of Rs.8,00,000/-to the complainant within a period of one month and in case of failure to pay compensation to the complainant, ordered to undergo simple imprisonment for a further period of one year.
The accused was not present on the date of the Judgment since he was undergoing sentence in another case in which he was also convicted u/s 138 of the Act.
On 28.4.2011 the applicant herein preferred an appeal alongwith application seeking condonation of delay of four months and twelve days bearing Criminal Miscellaneous Application no. 20/2011 before Sessions Judge, South Goa, Margao, which was made over to Assistant Sessions Judge. The same was objected to by respondent no.1/the complainant. Learned Assistant Sessions Judge, South Goa, Margao by order dated 6.5.2011 dismissed the application on the ground that no material was placed in support of the ground on which condonation of delay was sought. Condonation of delay was sought on the ground that applicant( applicant herein) had met with an accident and was hospitalised and further that advocate for the applicant informed him that there was no need to file an appeal since other three matters pending before the Supreme Court between the applicant and the respondent were at the stage of compounding. Copy of the application for compounding before the Supreme Court was filed alongwith the application.
Against order dated 6.5.2011 passed by the Assistant Sessions Judge rejecting condonation of delay in filing the appeal, the applicant filed present revision application. Alongwith revision application the applicant placed original certificate dated 25.3.2011 issued by doctor Shrisha Kumar, a doctor from Kulur, Manglore certifying that applicant was under his treatment for injuries to his right hand and hypertension from 22.11.2010 and he was advised rest for a period of five months from 22.11.2010. The substantive sentence of imprisonment imposed on the applicant was suspended upon execution of bail bond of Rs.20,000/-with one surety in the like amount. He was further directed to deposit sum of Rs.200000/-which order was complied by the applicant. The respondent no.1 pointed out that the applicant was in jail from 23.6.2010 to 13.12.2010 since he was convicted for the offence punishable u/s 138 of the Act filed by respondent no.1 herein. Thereafter the applicant produced certificate dated 18.6.2011 from doctor Shrisha Kumar, certifying that applicant was under his treatment for pain due to injury to the right thumb from 22.12.2010 and that earlier certificate issued as per request on phone by applicant''s wife who gave the date as 22.11.2010 which was as per her request. Since the certificates issued by doctor were suspicious, applicant was asked to remain present during the pendency of the revision application proceedings.
By order dated 22.6.2011, the applicant was asked to remain present in this Court on 7.7.2011. On 7.7.2011, advocate Mr. Naik appeared for the applicant and sought his exemption on the ground that he was admitted to Gurukrupa Nursing Home at Karwar with chest pain with hypertension on 5.7.2011. The applicant had already placed on record his affidavit dated 5.7.2011 which was sworn before Notary at Vasco-Da-Gama. Since the certificate issued by doctor from Gurukrupa Nursing Home at Karwar was suspicious and appeared to have been fabricated, bailable warrant was issued against the applicant returnable on 23.7.2011. On 23.7.2011, advocate Naik appearing on behalf of the applicant expressed his inability to argue the matter on behalf of the applicant. Accordingly, matter was adjourned subject to payment of costs. On 25.7.2011, Advocate Mr. Shivan Desai, appeared for the applicant and sought time and accordingly matter was taken up on 26.7.2011.
Mr. Desai, learned Advocate appearing for the applicant submitted that learned Assistant Sessions Judge, has erred in dismissing the application for condonation of delay and learned Judge ought to have accepted the cause shown by the applicant which was not denied by respondent no.1 herein by filing an affidavit. According to learned advocate, delay was not intentional and serious prejudice would be caused to the applicant if the delay is not condoned. Learned Counsel further submitted that the term "sufficient cause" has been liberally construed and in support of his submission he relied upon the Judgments of this Court in the case of Chatrapati Co-op Sugar Factory Ltd Vs. Amit S/o Ashok Thepade, reported in 2010 ALL MR (Cri) 3104 and Shiv Mandhukar Giri Vs. State of Maharastra, 2010 ALL MR (Cri) 2189.
Respondent no.1 who appeared in person submitted that applicant has been approaching the Courts with false pleas and as such learned Assistant Sessions Judge was perfectly justified in dismissing the application for condonation of delay. He further submitted that the certificate issued by doctor Shrisha Kumar does not deserve any credence inasmuch as the ground given for issuing certificate dated 18.6.2011 is patently unsustainable in law. According to respondent no.1, the applicant placed on record certificate dated 18.6.2011 when it was pointed out that certificate dated 25.3.2011 was patently false and could not have been issued since at the relevant time applicant was in jail. He further submitted that the affidavit filed by Mrs. Poonam Rao claims that she had got the certificate dated 25.3.2011 after her husband was arrested on 26.4.2011 which is inherently impossible. He therefore submitted that having regard to the conduct of the applicant no indulgence be shown to the applicant.
Mr. C. A. Ferreira, learned Public Prosecutor appearing on behalf of respondent no. 2 submitted that the conduct of the applicant does not entitle him to any discretionary relief from this Court. According to the learned Public Prosecutor, the applicant has suppressed the fact in the application seeking condonation of delay that he was in jail from 23.6.2010 to 13.12.2010 and therefore, the applicant does not deserve any indulgence from this Court.
I have carefully considered the rival submissions and perused the record and the judgments relied upon.
In the present case, the applicant initially filed certificate dated 25.3.2011 issued by doctor Shrisha Kumar, Kulur Mangalore stating that the applicant was under his treatment from 22.11.2010 and he was advised rest for five months. It was only after the respondent no.1 pointed out that the applicant was in jail from 23.6.2010 to 13.12.2010, the certificate dated 18.6.2011 issued by same doctor was placed on record. I find it extremely difficult to place any reliance upon both the certificates. It is pertinent to note that in certificate dated 18.6.2011, doctor Shrisha Kumar claims that the earlier certificate was issued as per the request made by wife of the applicant on phone. In the affidavit filed by Mrs. Poonam Rao wife of the applicant she claims that after her husband was arrested on 26.4.2011 she gave call to Mr. Cliffered Lobo, a family friend of her husband and asked him to get a certificate from doctor Shrisha Kumar and accordingly Mr. Cliffered Lobo got the certificate. The statement made by Mrs. Poonam Rao is contrary to the statement made in the certificate dated 18.6.2011. Moreover, the applicant relied upon certificate dated 5.7.2011 issued by Gurukrupa Nursing Home at Karwar to the effect that the applicant was admitted to the hospital with chest pain with hypertension and he was advised bed rest for a period of one week. It is pertinent to note that on 6.7.2011 the applicant filed affidavit dated 5.7.2011 sworn before notary advocate Rajkumar Naik from Murmugoa. It is difficult to believe that the applicant who was admittedly at Vasco-da-Gama on 5.7.2011 would go to Karwar which is at a distance of about 100kms from Vasco-da-gama and get himself admitted for chest pain. I have absolutely no doubt that certificate dated 5.7.2011 has been procured by the applicant to justify his absence in the Court on 7.7.2011.
From what is stated above, it is clear that the applicant has not come to this Court with clean hands and has relied upon medical certificates which are fabricated.
Moreover, in the application dated 28.4.2011 filed by the applicant seeking condonation of delay, he has not stated that he was in jail from 23.6.2010 to 13.12.2010 which fact ought to have been pleaded by the applicant to justify the delay in filing the appeal. Moreover, in the application, it has not been stated as to when he met with an accident and as to how long he was hospitalised. Another reason given by the applicant that his advocate informed him that there was no need to file appeal since other matters pending between the parties were at the stage of compounding, is also difficult to believe. No lawyer would advise his client not to file an appeal against judgment and order of sentence of conviction on the ground that other matters between the parties are likely to be settled. Thus, it is evident that the applicant has not come up with true facts either before the lower appellate Court or before this Court. On the contrary, the applicant has resorted to suppression of facts and placed reliance upon documents which are fabricated. Such an applicant, in my considered opinion, does not deserve any indulgence from this Court in exercise of discretionary jurisdiction u/s 397 read with Section 401 of Cr.P.Code
In Dalip Singh Vs. State of U.P.(2010) 2 SCC 114, the Apex Court after noticing the progressive decline in the values of life observed thus:
For many centuries Indian society cherished two basic values of life i.e "satya" ( truth) and "ahimsa" ( non violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-independence era and the people used to feel proud to tell truth in the Courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of fact in the Court proceedings.
In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure foundation of justice with tainted hands, is not entitled to any relief, interim or final.
Mr. Desai, learned Counsel for the applicant, after placing reliance upon two judgments delivered by learned Single Judge of this Court, has submitted that the term "sufficient cause" has to be liberally construed, more particularly while condoning the delay in filing an appeal against judgment and order of conviction. However, at the same time the fact remains that the party who comes to the court with suppression of the facts, cannot be shown any indulgence inasmuch as such an indulgence would send a wrong signal to the public and litigants. In my view, therefore, no interference is warranted with the impugned order passed by the Assistant Sessions Judge dismissing the application for condonation of delay. I find myself unable to agree with Mr. Desai, learned advocate for the applicant that in the absence of any denial on affidavit by respondent no.1 herein the learned Assistant Sessions Judge ought to have condoned the delay.
For the reasons aforesaid, I do not find any ground to interfere with the impugned order passed by the learned Assistant Sessions Judge, refusing to condone the delay. Consequently, the revision application stands dismissed with costs of Rs. 5000/-( Rupees five thousand only) in favour of the respondent no.1.
In view of the dismissal of the revision application, the applicant has to undergo sentence of imprisonment imposed on him by the learned Judicial Magistrate First Class, Vasco-Da-Dama in Criminal Case No. 1304/OA/NIA/2006/B. The applicant is granted time of two weeks to surrender to learned Judicial Magistrate, First Class, Vasco-Da-Gama. The bail bond executed by the applicant shall stand discharged only after the applicant surrenders before the learned Judicial Magistrate, First Class at Vasco-Da-Gama. In case, the applicant fails to surrender within a period of two weeks from today, learned Judicial Magistrate, First Class, Vasco-Da-Gama, shall take appropriate steps to take the applicant in custody to undergo the sentence of imprisonment imposed on him. The amount of Rs.2,00,000/-deposited by the applicant be returned to him. Revision application stands disposed of in aforesaid terms.