Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1813 (GUJ)

TEJAS DINESCHANDRA KANSARA v. STATE OF GUJARAT

2024-09-04

GITA GOPI

body2024
ORDER : Order in Criminal Misc. Application No. 2 of 2024 1. The present application has been filed for condonation of delay of 2273 days caused in filing the application for legal heirs. 2. Learned advocate for the applicant states that since the original complainant is no more and the heirs have now made a prayer to join them as legal heirs and condoned the delay of 2273 days, stating that they were not having specific knowledge about the pendency of the case and only on information from the Advocate, after getting the pedigree executed, a prayer has been made to join them as parties by condoning the delay. 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, 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 sub-serves 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 con- doned 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? As against this when delay is con- doned 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. 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 2273 days caused in filing the application for legal heirs is condoned. The application is allowed. 6. The application for legal heirs be listed today itself. Order in Criminal Misc. Application No. 1 of 2024 1. Advocate Mr. Chinmay Trivedi submits that he has instruction to appear on behalf of the legal heirs. 2. In view of the aforesaid, the present application for legal heirs is allowed. The heirs are permitted to be joined in Criminal Revision Application No. 84 of 2017. The necessary amendment be made accordingly. Order in Criminal Revision Application 1. Advocate Mr. Chinmay Trivedi submits that he has instruction to appear on behalf of the legal heirs and seeks permission to file Vakalatnama. Permission to file Vakalatnma is granted; the same be taken on record. 2. The necessary amendment be made accordingly. Order in Criminal Revision Application 1. Advocate Mr. Chinmay Trivedi submits that he has instruction to appear on behalf of the legal heirs and seeks permission to file Vakalatnama. Permission to file Vakalatnma is granted; the same be taken on record. 2. By way of this application, the applicant-revisionist challenges the judgment of conviction and sentence dated 04.11.2015 passed by the learned Additional Chief Judicial Magistrate, Bharuch in Criminal Case No. 449 of 2013 under Section 138 of the Negotiable Instruments Act, 1881, which came to be confirmed by order dated 12.01.2017 by the learned 3rd Additional Sessions Judge, Bharuch in Criminal Appeal No. 83 of 2015. 3. Mr. Shirikar H. Bhatt, learned advocate for the applicant-revisionist stated that the matter has been settled between the parties. It is stated that the all the cheque amount has been paid. 4. The wife of the complainant, Kusumben Kamalkant Chokshi is before this Court with affidavit, who has been identified by Advocate Mr. Chinmay Trivedi. Kusumben Kamalkant Chokshi, wife of the complainant, stated that Rs.6,00,000/- has been received and to that effect receipt of payment has been executed. The affidavit of the original complainant is on record, who affirms that the the matter has been settled between the parties out side the Court and she has received the amount of Rs.6,00,000/- and has given consent for compounding the offence. 5. Since the complainant has given 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 complainant, in consonance with the object of the N.I. Act and the provisions under Section 147 thereof, the matter is considered as compounded. 6. Accordingly, as the dispute has been resolved and the entire amount has been paid to the complainant, in consonance with the object of the N.I. Act and the provisions under Section 147 thereof, the matter is considered as compounded. 6. In aforesaid view of the matter, the judgment and order dated 04.11.2015 passed by the learned Additional Chief Judicial Magistrate, Bharuch in Criminal Case No. 449 of 2013, which came to be confirmed by order dated 12.01.2017 by the learned 3rd Additional Sessions Judge, Bharuch in Criminal Appeal No. 83 of 2015t, are quashed and set aside. 7. Accordingly, the present application stands disposed of in the above terms. Rule is made absolute to the aforesaid extent. Direct service is permitted.