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2025 DIGILAW 140 (HP)

Shanti Devi v. Vishal Sood

2025-01-10

BIPIN CHANDER NEGI

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JUDGMENT : Bipin Chander Negi, J. The present petition has been filed against the impugned judgment dated 19.01.2024, whereby the 1 st Appellate Court has rejected an application for condonation of delay of 480 days filed alongwith an appeal preferred against judgment of conviction dated 02.09.2022 and order of sentence dated 22.09.2022 passed by the Judicial Magistrate, First Class, Court No.-III, Shimla in offences punishable under Section 138 of the N.I. Act. 2. The petitioner/accused was convicted for offences punishable under Section 138 of the N.I. Act by the Court of learned Judicial Magistrate, First Class, Court No.III on02.09.2022. The petitioner/accused had been sentenced vide order dated 22.09.2022 to undergo simple imprisonment for one year and to pay compensation to the tune of Rs.1,29,184/-. 3. The conviction and sentencing order had been passed in the presence of the accused. A copy of the judgment and sentencing order were supplied to the petitioner on 29.09.2022. The same had been supplied to her free of cost. At that particular point of time, the petitioner-accused was a convict. 4. Admittedly in the case at hand, the period of limitation for filing the appeal is 30 days. The same commenced from 29.09.2022, on which date, the copy had been supplied to the petitioner/accused free of cost. 5. In the case at hand ‘Want of diligence’ or ‘inaction’ in filing the appeal is writ large despite having being provided with a copy of the judgement of conviction and order of sentence. In what cases can ‘Want of diligence’ or ‘inaction’ be attributed to an applicant it would be appropriate to refer to Katari Suryanarayana v. Koppisetti Subba Rao, (2009) 11 SCC 183 : “Want of ‘diligence’ or ‘inaction’ can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent”. 6. Condonation of delay is a discretionary power available to courts. Exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned 7. The Court must distinguish between an ‘explanation’ and ‘excuse’. Exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned 7. The Court must distinguish between an ‘explanation’ and ‘excuse’. In this respect, it would be appropriate to refer a judgment reported as Sheo Raj Singh (deceased) through Legal Representatives & Others v. Union of India and Another, 2023 (10) SCC 531 . The relevant extract of the same are as under: “…...Of course, the courts must distinguish between an ‘explanation’ and an ‘excuse’. An ‘explanation’ is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an ‘explanation’ from an ‘excuse’. Although people tend to see ‘explanation’ and ‘excuse’ as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real. 32. An ‘excuse’ is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an ‘excuse’ would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure hat a meritorious claim does not reach the higher courts for adjudication.” 8. The only explanation offered in the application seeking condonation of delay of 480 days in filing the appeal before the 1 st Appellate Court being that the petitioner/accused is an aged lady of 80 years, whose cheques have been wrongly managed by the respondent/complainant. The only explanation offered in the application seeking condonation of delay of 480 days in filing the appeal before the 1 st Appellate Court being that the petitioner/accused is an aged lady of 80 years, whose cheques have been wrongly managed by the respondent/complainant. The reason cited in the case at hand seeking condonation of delay of 480 days in filing the appeal cannot be termed to be a sufficient cause/ explanation as no facts laying out/ clarifying the circumstances for the cause for delay have been pleaded to point out that the delay that has happened is not due to the petitioners fault. 9. The factum of issuance of cheque Exhibit CW-1/B is not denied by the petitioner/accused. The cheque in the case at hand has been issued for a sum of Rs.65,592/-. Copy of the bill placed on record shows that on 23.05.2017, the petitioner/ accused purchased jewelry worth Rs.64,592/- and it is in this context that bill No. 706 dated 23.05.2017 had been issued. From the aforesaid, it is evident that the liability of the petitioner/accused to the extent of the cheque has been assessed. 10. The defense in the case at hand is that the dishonored cheque Exhibit CW-1/F had been obtained by the respondent/compliant as a blank cheque and had later been filled in by the respondent/complainant. In terms of Section 20 of the N.I. Act, it is permissible for the holder of the cheque to fill up the blanks and specify amounts therein. No fault in this respect can be found qua the rejection of the aforesaid plea by the trial Court. 11. Other than the aforesaid, the defense has been taken by the petitioner-accused that the jewelry in the case at hand had been purchased on credit by one Dev and the petitioner/accused had stood surety. The best witness to fortify this defense would have been Dev. However, Dev was never produced in evidence. Since the best evidence was withheld, therefore, the trial Court was correct in drawing in an adverse inference in this respect. Even in the cross examination of the complainant, no such suggestion was put to the complainant that the jewelry was purchased by one Dev to whom bill No. 706 dated 23.05.2017 had been issued and the petitioner/accused had stood surety for the purchase so made on credit by an individual named Dev. 12. Even in the cross examination of the complainant, no such suggestion was put to the complainant that the jewelry was purchased by one Dev to whom bill No. 706 dated 23.05.2017 had been issued and the petitioner/accused had stood surety for the purchase so made on credit by an individual named Dev. 12. Besides the aforesaid, insofar as procedure compliance of Section 138 and 142 are concerned, I see no infirmity in this respect with the well reasoned judgment of the trial Court. Therefore, even on merits, there is no substance in the petition prefer ed by the present petitioner. Accordingly, the present petition is dismissed being devoid of any merit so also the pending miscellaneous, if any. Tial court to ensure compliance of judgement and report compliance thereof.