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2023 DIGILAW 329 (HP)

Parminder Thakur v. Om Prakash

2023-06-01

SATYEN VAIDYA

body2023
JUDGMENT : SATYEN VAIDYA, J. 1. The delay in filing the appeal under Section 378 of the Code of Criminal Procedure (for short ‘the Code’) is sought to be condoned by way of instant application. 2. The complaint filed by applicant/appellant against respondent under Section 138 of the Negotiable Instruments Act, was dismissed by learned Judicial Magistrate First Class, Arki, District Solan, H.P. vide judgment dated 30.09.2019 passed in Criminal Case No. 51/3 of 2013. 3. The contents of instant application reveal that there is a delay of 807 days in filing the appeal. It is submitted that the delay as has occurred in filing the appeal is neither intentional nor willful. As per applicant, his counsel had not intimated him about the fate of the complaint, which was dismissed by learned trial Court on 30.9.2019. The applicant contacted his counsel in second week of March, 2020 and then came to know about the dismissal of the complaint. The applicant was informed that in order to assail the judgment of acquittal, applicant had to file appeal in the High Court. Thereafter, the applicant was prevented from filing the appeal due to COVID-19 restrictions. The applicant again contacted his counsel at Solan in December, 2021 and demanded certified copy of judgment passed by learned trial Court. The counsel did not supply the copy to the applicant and thereafter the applicant applied for certified copy of the judgment, which was supplied to him on 06.01.2022. The appeal could not be filed immediately on receipt of the certified copy as the counsel representing the applicant was out of station during winter vacations. He returned in the month of March, 2022 and thereafter the appeal alongwith the present application was filed. 4. Respondent, on notice, has contested the averments made in the application. It is submitted that the applicant has not approached this Court with clean hands. The judgment was passed by learned trial Court on 30.9.2019. A certified copy of the judgment had been received by the applicant/his counsel on 23.10.2019. The applicant has concocted a false story. It is further submitted that the applicant cannot be allowed to take the benefit of COVID-19 restrictions for unlimited period. During the entire year of 2021, the Courts had been working offline and online. On such ground a prayer has been made to dismiss the application. 5. The applicant has concocted a false story. It is further submitted that the applicant cannot be allowed to take the benefit of COVID-19 restrictions for unlimited period. During the entire year of 2021, the Courts had been working offline and online. On such ground a prayer has been made to dismiss the application. 5. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 6. In order to seek verification regarding the factum of applicant or his counsel having received a certified copy of judgment passed by learned trial Court on 23.10.2019, the comments were sought from the Copying Agency/ Court of Judicial Magistrate First Class, Arki and in response thereto, it has been confirmed that the certified copy of judgment indeed was delivered on 23.10.2019. It has been reported that an application for supplying certified copy of judgment passed by learned Judicial Magistrate First Class, Arki was submitted by Sh. Joginder Thakur, Advocate on 22.10.2019. The copy was prepared on 23.10.2019 and was delivered to one Sh. Vikas on 23.10.2019 itself. It is further reported that Sh. Vikas is an associate of Sh. Joginder Thakur, Advocate. 7. It is revealed from the certified copy of judgment dated 30.9.2019 passed by learned Judicial Magistrate First Class, Arki in Criminal Case No. 51/3 of 2013 that the applicant was represented before learned trial Court through Sh. Joginder Thakur, Advocate. Thus, the plea raised by respondent that a certified copy of judgment passed by learned trial Court had already been delivered to the counsel for applicant on 23.10.2019 is corroborated. However, it is alleged by the applicant that his counsel had not informed him about the fate of the case till the time when the applicant had enquired from his counsel in March, 2020. In view of the stand taken by the applicant, he had come to know about the dismissal of his complaint in March, 2020. As per his own saying, the applicant did not take any steps in order to assail the judgment passed by learned trial Court till December, 2021, when he allegedly again contacted his counsel. The applicant has attributed the reasons for such delay to COVID-19 restrictions. 8. As per his own saying, the applicant did not take any steps in order to assail the judgment passed by learned trial Court till December, 2021, when he allegedly again contacted his counsel. The applicant has attributed the reasons for such delay to COVID-19 restrictions. 8. Assuming that the applicant was not aware about the dismissal of his complaint till March, 2020, the reasons for further delay till December, 2021, as alleged in the application do not appear to be genuine and bona-fide. COVID-19 restrictions were not in force for the entire period between March, 2020 and December, 2021. During some period, the restrictions were relaxed and for further substantial intervening period, there were no restrictions. The Courts were functioning through online and offline mode. Thus, the claim of the applicant is not bona-fide. It can also be noticed that even after 06.01.2022 when applicant received the certified copy, no justifiable reasons has been shown for not filing the appeal within reasonable time. The applicant was aware that the limitation for filing appeal had already expired long back, still his approach had been casual and callous. 9. In this view of the matter, there is no hesitation to hold that not only the assertion raised on behalf of the applicant reveals negligence on his part, but also reflects clear malafide. 10. In Maniben Devraj Shah vs. Municipal Corporation of Brihan, Mumbai, (2012) 5 SCC 157 , the Hon’ble Supreme Court has held as under: “23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.” 11. In Brahampal alias Sammay and Another vs. National Insurance Company, (2021) 6 SCC 512 , the Hon’ble Supreme Court has reiterated the relevant factors required to be considered for ascertaining the sufficient cause pleaded by a party to seek condonation of delay as under: “22. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however, at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of “sufficient cause.” Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.” 12. Reverting to the facts of the case, the applicant has miserably failed to cross the legal barriers, as expounded in above said judgments. It is evident from the material on record that the applicant had been grossly negligent in prosecuting his case. He has not produced on record any material to substantiate his allegation against the counsel representing him before learned trial Court. As noticed above, there were no absolute COVID-19 restrictions for the entire period between March, 2020 to December, 2021. It is also evident that the applicant came forward to file appeal belatedly at his own option. He has not produced on record any material to substantiate his allegation against the counsel representing him before learned trial Court. As noticed above, there were no absolute COVID-19 restrictions for the entire period between March, 2020 to December, 2021. It is also evident that the applicant came forward to file appeal belatedly at his own option. He has not been able to show any cause much less sufficient cause for condoning the delay in filing the appeal. Above all, as noticed above, the explanation rendered by the applicant is not bonafide. 13. In light of above discussion, applicant has not been able to make out a case for condonation of huge delay of 807 days in filing the appeal. There is no merit in the application and the same is dismissed.