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2024 DIGILAW 1387 (GUJ)

Alkaben Anilbhai Parmar v. State Of Gujarat

2024-06-25

GITA GOPI

body2024
ORDER : Gita Gopi, J. Order in Criminal Misc. Application 1. The present application has been filed for condonation of delay of 109 days caused in filing the revision application. 2. Ms. Tanaveer K.Loladia, learned advocate for the applicant states that delay of 109 days occurred to challenge the order of the courts below, as the applicant was facing financial crunch and after making arrangement for funds and taking legal advise, she could prefer the revision application. 3. Learned APP for the respondent State submitted that though each day delay has not to be explained, but sufficient explanation is required to be placed on record for consideration of the Court, and, thus urged to reject the application. 4. In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others reported in AIR 1987 SC 1353 it has been observed as under :- “3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning- ful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 5. In view of the principle laid down in the above referred judgment and considering the averments made in the application and as the delay is sufficiently explained, the matter requires decision on merits. Hence, delay of 109 days caused in filing the revision application is condoned. The application is allowed. 6. Let the main revision application be listed today itself. Order in Revision Application 1. Heard learned Advocate Ms. Tanaveer K.Loladia for the applicant and learned advocate Mr. Ishan H.Rajdev for respondent no.2 - original complainant. 2. Rule. Learned APP waives service of notice of Rule on behalf of the respondent – State and Mr. Ishan H.Rajdev, learned advocate waives service of notice Rule on behalf of the respondent no.2. By consent Rule is fixed forthwith. 3. By way of this application, the applicant – revisionist challenges the judgment of conviction and sentence dated 28.01.2020 passed by the learned 3rd Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.10818 of 2017, under Section 138 of the Negotiable Instruments Act, 1881, which came to be confirmed by order dated 28.06.2023 passed by the learned 12th Additional Sessions Judge, Rajkot in Criminal Appeal No.84 of 2021. 4. Ms. Tanaveer K.Loladia, learned advocate for the applicant submitted that during the pendency of the proceedings, parties have settled the disputes amicably outside the Court, and now there remains no grievance between them. Advocate Mr. 4. Ms. Tanaveer K.Loladia, learned advocate for the applicant submitted that during the pendency of the proceedings, parties have settled the disputes amicably outside the Court, and now there remains no grievance between them. Advocate Mr. Ishan H.Rajdev has produced affidavit of the original complainant and concurred with the factum of settlement, as canvassed by advocate Ms. Tanaveer K.Loladia. 5. Respondent no.2, Meghdootbhai Santilal Parmar – original complainant is present before the Court and is identified by learned advocate Mr. Ishan H.Rajdev. The respondent no.2 – original complainant submitted that he has received the amount to his satisfaction and now he proposes to compound the matter. Respondent no.2 – original complainant has affirmed about the Demand Draft and has also referred to the cash amount, which he has received as a full and final payment towards settlement. 6. Since the amount to his satisfaction has been received by the original complainant and has given his consent for compounding the offence, keeping in mind the object of Section 147 of the NI Act, which is an enabling provision, which provides for compounding the offence and may require the consent of the aggrieved for compounding the offence, however, the specific provision under Section 147, inserted by way of amendment towards special law, would give overriding effect to sub-section (1) of Section 320 Criminal Procedure Code, 1973 (CrPC) as has been observed in the case of Damodar S. Prabhu v. Sayed Baba Lal, AIR 2010 SC 1907 . Accordingly, as the dispute has been resolved and the entire amount has been paid to the legal heir of original complainant, in consonance with the object of the N.I. Act and the provisions under Section 147 thereof, the matter is considered as compounded. 7. In aforesaid view of the matter, the judgments and orders dated 28.01.2020 passed by the learned 3rd Additional Chief Judicial Magistrate, Rajkot in Criminal Case No.10818 of 2017, which came to be confirmed by order dated 28.06.2023 by the learned 12th Additional Sessions Judge, Rajkot in Criminal Appeal Nos.84 of 2021 for the offence punishable under Section 138 of the NI Act, is quashed and set aside. Warrant, if any, issued stands cancelled. 8. Accordingly, the present application stands disposed of in the above terms. Rule is made absolute to the aforesaid extent. Direct service is permitted.