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2019 DIGILAW 608 (CAL)

Neetender Soni v. State of West Bengal

2019-05-21

SUBHASIS DASGUPTA

body2019
JUDGMENT : 1. The impugned judgment and order dated 7th August, 2017 passed by the learned Additional District & Sessions Judge, Fast Track Court No. II, City Sessions Court, Bichar Bhawan, Calcutta dismissing the Criminal Revision No. 145 of 2016 and thereby affirming the judgment and order of conviction and sentence dated 12th July, 2016 passed by learned Metropolitan Magistrate, 6th Court at Calcutta in connection with case being No. C-812 of 2004 under Section 138 of the Negotiable Instruments Act is the subject of challenge in this revisional application under Section 482 read with Section 401 of the Code of Criminal Procedure. 2. Learned advocate for the revisionist submitted that the order of imprisonment in default of payment of compensation having recorded by the learned Magistrate after holding the petitioner accused as convicted for commission of offence under Section 138 of the NI Act treating the compensation as fine, the remedy of appeal available against imposition of such compensation should also be extended treating the compensation as fine in view of the decision delivered by a Coordinate Bench of this Court in the case of P.S. Mitra alias Partha Sarathi Mitra vs. Manor Travels Private limited & Anr, (2017) CriLJ 3764 : 2017(2) Cal Criminal Law Reporter 178. 3. It was contended by learned advocate for petitioner that the jurisdictional error could be challenged at any point of time, and the order passed in revision having suffered from want of jurisdictional error would be a nullity and void ab initio. 4. According to petitioner, the delay in filing this revisional application totaling to 174 days could be condoned even during the post admission stage of this revisional application, upon consideration of a fact that when substantial justice and adequate considerations were pitted against each other, cause of substantial justice deserves to be preferred. The delay according to petitioner was a non-deliberate delay, and the same should be condoned applying the rational commonsense in a most pragmatic manner contrary to a pedantic approach for the purpose. 5. Learned advocate for the opposite party No.2/complainant submitted most ardently that the revisional application was filed in this case without filing any separate application, explaining the delay caused in preferring this revisional application, and a separate CRAN application was filed by the petitioner after enjoying interim order of stay granted in this case for a suitable period of time. 5. Learned advocate for the opposite party No.2/complainant submitted most ardently that the revisional application was filed in this case without filing any separate application, explaining the delay caused in preferring this revisional application, and a separate CRAN application was filed by the petitioner after enjoying interim order of stay granted in this case for a suitable period of time. The separate CRAN application under Section 5 of the Limitation Act praying for condonation of delay was subsequently filed on 27.03.2019, long after entering appearance of opposite party in this case pursuant to the service of notice being effected upon him as per order of the court, when admittedly the revisional application was filed on 30th April, 2018. The delay thus not having been condoned at the time of admission of the revisional application, the stay order was obtained by the petitioner making suppression of materials facts, and also practicing fraud upon the Court and delay so occasioned should not be condoned any more in the given set of facts. 6. The judgment sought to be relied upon by the petitioner, according to opposite party No.2 could not be made applicable in the instant case without the delay being condoned in terms of the provisions of the law specifically contained for the purpose. 7. Learned advocate for the State/opposite party proposed for disposal of this revisional application in view of the settled proposition of law regard being had to the delay already caused in preferring this revisional application 8. Some salient facts may be referred here for addressing the issue required to be addressed by this Court, and also for giving decision accordingly. 9. The cheque dated 30.11.2013 involving an amount of Rs.5 lakh issued by the revisionist/petitioner in favour of the complainant/opposite party No.2 was dishonoured by the bank for insufficiency of fund. A prosecution thereafter under Section 138 of the NI Act was launched after servicing notice making demand of money. Learned Metropolitan Magistrate, 6th Court at Calcutta in connection with case being No. C-812 of 2004 held the petitioner convicted and sentenced him to pay Rs. 6 lakh as compensation, in default to simple imprisonment for three months. A prosecution thereafter under Section 138 of the NI Act was launched after servicing notice making demand of money. Learned Metropolitan Magistrate, 6th Court at Calcutta in connection with case being No. C-812 of 2004 held the petitioner convicted and sentenced him to pay Rs. 6 lakh as compensation, in default to simple imprisonment for three months. The petitioner/convicted accused felt aggrieved with such order of conviction and the sentence imposing compensation, and preferred a revisional application which was disposed of in connection with criminal revision No. 145 of 2016 by learned Additional District & Sessions Judge, Fast Track Court No. II, City Sessions Court, Bichar Bhawan, Calcutta dismissing the revisional application and thereby affirming order of conviction passed by the learned Metropolitan Magistrate, 6th Court at Calcutta. 10. The only question requiring decision is whether the appellate remedy as recognised in the case of P.S. Mitra alias Partha Sarathi Mitra (supra) could be extended to the petitioner even after disposal of criminal revision No. 145 of 2016 by the learned Additional District & Sessions Judge, Fast Track Court No. II, City Sessions Court, Bichar Bhawan, Calcutta in a case where there was admittedly 174 days delay, which remained unexplained at the time of admission followed by granting interim order of stay of operation of the impugned judgment or not. In the said decision upon application of purposive interpretation, it was decided that when the procedure to impose imprisonment in default of payment of compensation is acknowledged by treating compensation as fine, the remedy of appeal available against such sentence of fine must be extended to order of compensation. The compensation was thus deemed to be fine for the purpose of Section 64 IPC. The pending revisional application in the court below was thus allowed to be converted into an appeal thereby extending the appellate remedy in such case against sentence of fine after treating the compensation as fine for the purpose of Section 64 IPC. 11. The settled proposition of law is that the law declared by the court will have a retrospective effect, if not declared otherwise so specifically. The purposive interpretation so employed in such decision rendered the ratio decided therein effective and operative from the date of enactment of the provision. 12. 11. The settled proposition of law is that the law declared by the court will have a retrospective effect, if not declared otherwise so specifically. The purposive interpretation so employed in such decision rendered the ratio decided therein effective and operative from the date of enactment of the provision. 12. It would be profitable here to rely upon decisions delivered in P.V. George and Ors vs. State of Kerala and Ors, (2007) 3 SCC 557 and delivered in B.A. Linga Reddy and Ors. vs. Karnataka State Transport Authority and Ors., (2015) 4 SCC 515 whereby and whereunder it was decided by the Apex Court that the law declared by Court will have retrospective effect, if not otherwise stated to be so specifically. 13. Learned advocate for the petitioner referring decision delivered in the case of Major General A.S. Gauraya vs. S.N. Thakur, (1986) 2 SCC 709 argued that there was nothing like any prospective operation alone of the law laid down by court, the law laid down by court would apply to all pending proceedings. The ratio laid down in the case of P.S. Mitra alias Partha Sarathi Mitra (supra) came to be decided on 21st March, 2017, the order of conviction was recorded by the learned Metropolitan Magistrate 6th Court Calcutta on 12.07.2016, and the same was carried to criminal revision No. 145 of 2016 by filing a revisional application for the purpose in August, 2016 before the revisional court below. Though such criminal revision application was disposed of on 17.08.2017, but the ratio decided in the case of P.S. Mitra alias Partha Sarathi Mitra (supra) was rendered much before the disposal of such revisional application. For inadequacy and/or obscurity involved in the performance of the stake holders leading to the disposal of criminal revisional application being No. 145 of 2016, the applicability of the ratio decided in the case of P.S. Mitra alias Partha Sarathi Mitra (supra), neither could be challenged for its operation, nor could be applied over there at least for conversion of the application from revision to appeal. Now by filing the instant revisional application, the petitioner wanted to have it corrected by adopting a process of filing an appeal in terms of the decision rendered in the case of P.S. Mitra alias Partha Sarathi Mitra (supra). Now by filing the instant revisional application, the petitioner wanted to have it corrected by adopting a process of filing an appeal in terms of the decision rendered in the case of P.S. Mitra alias Partha Sarathi Mitra (supra). The instant revisional application under Section 482 read with Section 401 was filed on 30th April, 2018 without being accompanied by any separate application under Section 5 of the Limitation Act, praying for condonation of the delay, admittedly for 174 days. The CRAN application being No.1291 of 2019 appears to have been filed on 27.03.2019 i.e. at most belated stage thereby making contravention of the provisions contained in Section 5 of the Limitation Act. The delay caused in preferring this revisional application was endeavored to be explained in order to establish a stand that it was not deliberate delay, and as such proposed for condonation of delay for dispensation of substantial justice ignoring the technicalities involved in the process. 14. Reference was made by the learned advocate for the petitioner to a decision delivered in the case of State of Nagaland vs. Lipok AO & Ors., (2005) 3 SCC 752 : 2005 AIR (SC) 2191 in order to focus that refusal to condone the delay would result in grave miscarriage of justice, and as such persuaded the court to condone the delay irrespective of the technicalities coming against the way of dispensation of substantial justice. 15. Honest effort was made by learned advocate for the petitioner to derive benefit favourable to the purpose of petitioner by making reference to a Delhi High Court judgment rendered in the case of Universal Builders and Constrictors vs. Sheila Singh Uppal & Ors., (2009) 3 CivCC 178 : 2009(2) PLR (Delhi) 47 : 2008(20)R.C.R.(Civil)485, the relevant text mentioned in para 12 of such decision may be mentioned as hereinunder: "12. It is not necessary in law that an application must be filed. Of course as a matter of practice the applicant files such an application. But the power of the Court is not necessarily depedent on the formal application being made by the applicant. If it is made, well and good; but if it is not made and only an oral prayer is made for condonation of delay the Court is not powerless if there is material on the record to show facts constituting sufficient cause for condonation of delay." 16. If it is made, well and good; but if it is not made and only an oral prayer is made for condonation of delay the Court is not powerless if there is material on the record to show facts constituting sufficient cause for condonation of delay." 16. Adverting to such decision learned advocate for the petitioner persuaded the court to establish that when averment contained in CRAN application sufficiently explained the non-deliberate delay, the Court has every power to condone such delay even accepting oral prayer for the purpose. Admittedly the petitioner had taken out this CRAN application long after filing the main revisional application, and even after enjoying the interim order of stay granted by the court, and it was so filed soon after the opposite party/complainant entered appearance in this case raising such plea before the Court. It would be most pertinent here to refer Section 5 of the Limitation Act 1963 which may be mentioned as hereinbelow: 5. Extension of prescribed period in certain cases. -Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 17. The non-deliberate delay, if there be any, could be condoned authorising the applicant to prefer the application like the instant revisional application even after expiry of the period provided the non-deliberate delay as claimed by petitioner in filing such application was sufficiently explained at the very beginning, when the revisional application was admittedly filed and subsequently moved before the Court. In other words, the applicant seeking condonation of delay was under obligation to satisfy the court so as to condone the non-deliberate delay at the stage of admission. In the instant application the delay of 174 days admittedly caused in preferring this revisional application could not be satisfactorily explained with a prayer for condonation of delay in order to have the desired relief, when the stay order was obtained at the admission stage on 25.02.19. In the instant application the delay of 174 days admittedly caused in preferring this revisional application could not be satisfactorily explained with a prayer for condonation of delay in order to have the desired relief, when the stay order was obtained at the admission stage on 25.02.19. The jurisdictional error caused in disposing of the revisional application earlier by learned Additional District & Sessions Judge, Fast Track Court No. II, City Sessions Court, Bichar Bhawan, Calcutta thus cannot be taken to be corrected in the light of the decision rendered in the case of P.S. Mitra alias Partha Sarathi Mitra (supra), unless the alleged non-deliberate delay is explained with a prayer for condonation of delay at the very initial stage, what is exactly contemplated in Section 5 of the Limitation Act. Such alleged delay even cannot be allowed to be condoned at the post admission stage making breach of the provisions contained in Section 5 of the Limitation Act 1963, when such point of limitation was raised by the opposite party/complainant after he had entered his appearance in this case. 18. More so, the absence of any strong and overwhelming grounds being urged at the instance of petitioner, which might be taken as prime grounds of appeal having a serious and predominant effect over the sustainability of the sentence awarding compensation, other than the grounds already agitated, while assailing the order of conviction and sentence thereunder in connection with a revisional application already disposed of, it would be without any practical purpose and consequence for giving precedence to such technicality allowing petitioner to re-open the case for availing the appellate remedy. Adherence to technicality for the peculiarity of the circumstances involved in the case will simply give a premium to beat the time, so that complaint may not get the compensation or at least further delay is caused in the process, which this court should not allow it to happen any more. 19. The revisional application therefore, fails. 20. The impugned order in Criminal Revision No.145 of 2016 passed by the learned Additional District & Sessions Judge, Fast Track Court No. II, City Sessions Court, Bichar Bhawan, Calcutta does not call for any interference. 21. 19. The revisional application therefore, fails. 20. The impugned order in Criminal Revision No.145 of 2016 passed by the learned Additional District & Sessions Judge, Fast Track Court No. II, City Sessions Court, Bichar Bhawan, Calcutta does not call for any interference. 21. The petitioner is directed to make payment of compensation amount to complainant/opposite party within one month from the date of the communication of this order to the learned court below, and court makes it clear that if no payment is made within the stipulated period hereinabove, learned court below will be at liberty to proceed with the execution of the order granting compensation treating it as fine after adhering to the procedure contained in the Code of Criminal Procedure. 22. With the disposal of this revisional application, the CRAN 1291 of 2019 stands automatically disposed of. 23. With this direction and observation, the revisional application stands disposed of. 24. Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.