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2018 DIGILAW 1023 (HP)

Ramesh Chand Thakur v. K. F. C.

2018-05-30

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Delay of over one year in filing the appeal against the order dated 6.1.2016 passed by learned Judicial Magistrate 1st Class, Court No.5, Shimla has been sought to be condoned on the ground that in view of the judgment of the Hon’ble Apex Court in Dashrath Rupsingh Rathod V. State of Maharashtra and another, the Court below for want of jurisdiction had become functus officio and as this fact was brought to its notice on 20th July, 2015, the impugned order could have not been passed. The applicant/ appellant allegedly was under the impression that the complaint stood transferred to the Court of learned Judicial Magistrate 1st Class, Anni, District Kullu, H.P. It is, however, on 3rd July, 2017 when his son inquired from learned counsel representing him at Shimla and came to know that the complaint stood dismissed for want of prosecution on 6.1.2016. Certified copy of order dated 6.1.2016 was applied on the same day and received on 24.07.2017. The appeal along with this application was filed after two days i.e., on 26.07.2017. 2. In reply to the application, the accused respondent has contested the application on the grounds inter-alia that the impugned order is neither illegal nor calls for any interference having been passed at a stage when the applicant/appellant failed to appear in the trial Court. It is denied that he came to know about the impugned order on 3rd July, 2017. The applicant/appellant and learned counsel representing him were aware of the date fixed in the complaint, however, failed to put in appearance intentionally and deliberately. 3. On hearing learned counsel for the parties and going through the record available at this stage, true it is that on 27.07.2015, the matter was adjourned for consideration on the point of jurisdiction for 4.08.2015. On that day, complainant, however, failed to put in appearance. On the date next to that, i.e., 15.9.2015, it was represented on behalf of the respondent-accused that he has made the payment of whole amount payable to the complainant. On the prayer made by learned counsel for the complainant, the matter was adjourned to 5.10.2015 to have instructions as to whether complainant has actually received the amount in question or not. On the date fixed, the accused was not present. His presence was ordered to be secured by issuing bailable warrants for the next date i.e. 17.11.2015. On the prayer made by learned counsel for the complainant, the matter was adjourned to 5.10.2015 to have instructions as to whether complainant has actually received the amount in question or not. On the date fixed, the accused was not present. His presence was ordered to be secured by issuing bailable warrants for the next date i.e. 17.11.2015. On that day, the accused though was present, however, neither the complainant nor learned counsel representing him appeared. The accused again reiterated on that day that he has made payment of the whole amount to the complainant. Since the complainant was not present, therefore, notice was issued to him for 6.1.2016. On 6.1.2016, perhaps he was not served with the notice. Learned trial Court has called the matter on four occasions on that day and thereafter taking note of his absence and the provisions contained under Section 256 of the Code of Criminal Procedure, acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act. 4. In this backdrop and keeping in view the over all conduct of the applicant/appellant, it lie ill in his mouth to say that he was prevented by sufficient cause from filing the appeal in this Court within the period of limitation. As a matter of fact, after the accused-respondent having disclosed the factum of he having made the payment of whole amount, the complainant became casual in the matter of appearance in the trial Court because he was not present on 17.11.2015 and even failed to put in appearance on 6.1.2017 also despite personal service of notice issued to him as recorded in the impugned order. As a matter of fact, the complaint should have been dismissed on 17.11.2015 itself when the complainant failed to put in appearance on that day despite of the date fixed in the presence of learned counsel appearing on his behalf in the trial Court. There was no occasion to learned trial Judge to have issued the notice to complainant for 6.1.2016 particularly, when he was duly represented by a counsel. 5. True it is that the complaint was adjourned to 4.8.2015 for consideration on the point of jurisdiction. There was no occasion to learned trial Judge to have issued the notice to complainant for 6.1.2016 particularly, when he was duly represented by a counsel. 5. True it is that the complaint was adjourned to 4.8.2015 for consideration on the point of jurisdiction. It is, however, not recorded in the order to this effect passed on 27.5.2015 that learned trial Court had become functus officio on account of lack of jurisdiction in view of the judgment of the Hon’ble Apex Court in Dashrath Rupsingh Rathod’s case cited supra. But then, it was for learned counsel representing the complainant to have appeared in the trial Court on the next date and made submissions qua this aspect of the matter. However, neither he nor learned counsel representing him has turned up. Learned trial Judge had not passed any adverse order against him even on that date. Unless and until no order has been passed by the trial Court on the point of jurisdiction, the assumption and presumption raised by the complainant at his own are nothing but germane of his mind, hence far fetched. 6. The present in the given facts and circumstances and the discussion hereinabove is a case where the applicant/appellant has failed to show sufficient cause warranting the condonation of an inordinate delay of over one year (one year, four months and two days), occurred in filing the appeal. On the other hand, on expiry of the period of limitation, a valuable right has accrued in favour of the respondent-accused, which cannot be taken away in view of there being no explanation, which can be termed as reasonable and plausible and warranting the condonation of delay. 7. The application being devoid of any merits is dismissed. Consequently, the application, Cr.M.P(M) No. 992 of 2017 filed for seeking leave to appeal and the main appeal also stand dismissed being time barred.