CAV JUDGMENT S.G.SHAH, J. 1. Rule. Service of rule is waived by Ms. Jhaveri, Ld. APP for respondent no. 2 and Ms. Kruti Shah, Ld. Advocate for respondent no. 1. 2. The petitioner is original accused; whereas the respondent no. 1 is original complainant and respondent no. 2 – State is formal party. The petitioner has been convicted for committing offence under section 138 of the Negotiable Instruments Act [for short ‘NI Act’] by the 11th Addl. Sr. Civil Judge and Judicial Magistrate First Class, Surat in Criminal Case No. 62/2005 by judgment and order dated 31/3/2009. Such judgment was confirmed by the 3rd Addl. District & Sessions Judge, Surat, on 11/3/2011 in Criminal Appeal No. 33/2009 preferred by the petitioner. Thereby both, the trial Court and first appellate Court have confirmed the conviction of simple imprisonment of the petitioner for six months and award of compensation of Rs.4,51,000/-being the amount of cheque involved in the complaint. Thereby, there are concurrent findings of fact and confirmation of sentence against the present petitioner. 3 The petitioner has challenged his conviction by filing Criminal Revision Application No. 333/2013 before this Court on 8/5/2013. However, considering the date of impugned judgment being 11/3/2011, there is a delay of 798 days in filing such revision. To condone such delay in filing the revision application against concurrent findings of sentence, the petitioner accused has preferred this application contending therein that he was in financial difficulty and, therefore, could not file revision application in time as he could not arrange funds required for the purpose of legal expenses including advocate fees and that he was making arrangement of funds for the purpose. It is also contended that the petitioner was also making arrangement of funds required to be paid to the complainant as per the settlement talks, more particularly when the petitioner has lost before the trial Court as well as before the appellate Court. Thereby, it is pleaded and submitted that it took considerable time and meanwhile in April 2012 the petitioner met with an accident resulting into serious injuries viz., fracture of left knee, for which he was admitted in the hospital, operated for fixing plate and screws and could not continue his routine activity for six months. Thereby, it is pleaded and submitted that it took considerable time and meanwhile in April 2012 the petitioner met with an accident resulting into serious injuries viz., fracture of left knee, for which he was admitted in the hospital, operated for fixing plate and screws and could not continue his routine activity for six months. Therefore, it is submitted that there is question of life and liberty and reputation of the petitioner and that the petitioner had not neglected, but due to unavoidable circumstances, delay has been caused and, therefore, it is requested to condone. It is further contended that the petitioner has never given up his challenge to the impugned judgment and that he has got good case on merits; whereas denial to condone delay would result into irreparable injury and loss. The petitioner has also annexed his treatment papers to prove his injury and treatment as aforesaid. 4. The respondent no. 1 has resisted the application by filing affidavit-in-reply wherein it is contended that if the petitioner was having financial difficulty, he should have availed services of free legal aid, but when he has not approached any such authority, it shows that he was having sufficient means and that he is very much aware about the provisions of law. So far as the story regarding fracture and expenditure is concerned, it is submitted that the documents produced by the petitioner on record does not show the details of injury or hospitalization since the documents on record simply confirms that the petitioner was under treatment from 6/4/2012 to 13/4/2012 i.e. only for a week. It is further submitted that the petitioner has suppressed material facts from this Court since arrest warrant has already been issued against the petitioner as he failed to surrender in time as per the impugned judgment and that there were three interconnected cases against the present petitioner, one Reshmaben Desai and in Criminal Appeal Nos. 31 to 33 of 2009, both of them have filed joint Pursis on 19/9/2009 confirming that they will pay Rs.11 lacs before 31/12/2009. However, they have failed to comply with such undertaking before the appellate Court, copy of which is produced at Annexure – R-1. 31 to 33 of 2009, both of them have filed joint Pursis on 19/9/2009 confirming that they will pay Rs.11 lacs before 31/12/2009. However, they have failed to comply with such undertaking before the appellate Court, copy of which is produced at Annexure – R-1. It is further contended that when all these cases were heard and decided together and when revision applications in two of the cases filed before this Court, well in time, being Criminal Revision Application No. 138/2011 and when the High Court has dismissed both revision applications on 6/9/2012, now there is no reason or substance for the petitioner to file separate revision. It is further contended that in fact, because of absence of the petitioner before the trial Court, the trial Court has to issue a warrant and declaration under section 82 of the Code of Criminal Procedure to secure his presence. Copy of such declaration is also produced at Annexure – R-1 with the affidavit. 5. Therefore, though merits of the case may not be looked into in detail so as to arrive at final decision while deciding the application for condonation of delay, when it is settled legal position that generally the petitioner should not be made to suffer on such technicality of delay in preferring appeal or revision, facts of main dispute and probability of petitioner’s case is generally always looked into. Therefore, even for limited purpose, if we examine the impugned judgment, irrespective of all other facts and details, which can be dealt with while deciding the main revision application only, one glaring fact is clear and certain that after receipt of statutory notice under the NI Act for the payment of cheque amount being Rs.4,51,000/-, the petitioner has issued one cheque of Rs.50,000/-towards part payment in favour of the respondent and even that cheque was not cleared by his banker for want of sufficient fund, the complainant has no option but to proceed further strictly in the complaint and similarly appellate Court has no option but to confirm conviction and sentence as well as compensation. 6 Therefore, prima-facie considering the latest decision of the Hon’ble Supreme Court regarding not to condone the delay in such cases where the petitioner is taking disadvantage of judicial process, though application deserves to be dismissed, considering the fact that ultimately grievance of the petitioner was required to be dealt with judiciously by providing reasonable opportunity to submit his case, it would be appropriate to consider the application for condonation of delay on following grounds : i] The petitioner is able to prove his ailment. ii] Though free legal aid is available, only because of misconception or absence of knowledge to get legal aid, the petitioner could not file revision in time, iii] The petitioner has tried to settle the dispute, which fact is not denied by the respondent. However, at the same time, to restrain the petitioner from taking disadvantage of judicial process, it is necessary to impose strict conditions for condoning the delay. 7 Considering the facts and circumstances as narrated hereinabove, it would be appropriate to direct the petitioner to deposit entire amount of compensation of Rs.4,51,000/-before this Court within four weeks from today. If such amount is deposited, it should be invested in fixed deposit so as to earn maximum interest to avoid further loss of interest to either side. Such deposit would be subject to the final outcome of the main revision application. Thereby, present application is allowed on the condition as set forth hereinabove regarding deposit of Rs.4,51,000/-by the petitioner within four weeks from today. It is made clear that non-depositing of such amount within four weeks would result into dismissal of the present application. Therefore, the Registry shall list the main revision application for admission after four weeks only if the petitioner deposits Rs.4,51,000/-within four weeks from today, else revision application shall stand disposed of. Application is allowed accordingly. Rule is made absolute to the aforesaid extent.