1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL WRIT PETITION NO. 570 OF 2009 Chatrapati Co-op. Sugar Factory Ltd. Sonajinagar,Sawargaon ...Petitioner VERSUS Amit s/o Ashok Thepade ...Respondent ..... Shri P.D.Suryawanshi, advocate h/f Shri D.N.Suryawanshi, advocate for petitioner (original complainant) Shri A.C.Darandale, advocate for sole respondent (original accused). ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 5 th August, 2010 ORAL JUDGMENT : - 1 Rule. Rule made returnable forthwith and with the consent of the learned counsel for the parties taken up for final hearing. 2 Heard Shri P.D.Suryawanshi, advocate holding for Shri D.N.Suryawanshi, advocate for petitioner (original complainant) and Shri A.C.Darandale, advocate for sole respondent (original accused). 2 3 By the present petition, filed by the petitioner under Articles 226 and 227 of the Constitution of India, the petitioner prays that the judgment and order dated 24.3.2009, passed by the Additional Sessions Judge, Majalgaon in Criminal Miscellaneous Application No. 10 of 2008, on the application for condonation of delay to file Criminal Revision Application challenging the order of issuance of process dated 13.11.2003 in S.C.C. No. 1136 of 2003, passed by the learned Judicial Magistrate, First Class, Majalgaon, be quashed and set aside. FACTUAL MATRICS : - 4 The petitioner herein filed Criminal Case No. 1136 of 2003 against the respondent on 29.9.2003 under Section 138 of the Negotiable Instruments Act, 1881 for the dishonour and return of cheque of Rs.50,00,000/- and copy thereof is produced at Exh.P-1 (page 13). Accordingly, learned Judicial Magistrate, First Class, Majalgaon issued process on the said complaint on 13.11.2003 and summons thereof was issued to the respondent on 6.12.2003 and copy thereof is annexed at Exh.P-2 (page 16). It was allegedly served upon the respondent and the report thereof is annexed at Exh. P-2 (page 18). However, since the respondent did not appear before the said court, the complainant preferred an application on 3 16.4.2004 requesting for issuance of warrant against him. Copy thereof is annexed at Exh. P-3 (page 19) and bailable warrant was issued against the respondent on 11.5.2004 (page 20). The said warrant was executed against the respondent and the copy thereof is produced at Exh. P-4 (page 21). Thereafter, respondent preferred Criminal Revision Application against the order of issuance of process before the learned Additional Sessions Judge, Majalgaon and also preferred an application for delay condonation i.e. Criminal Miscellaneous Application No. 10 of 2008 for filing the said Criminal Revision Application on 16.10.2008, and copy thereof is annexed at Exh. P-5 (page 25). 5 The complainant herein opposed the said application by filing the say, as well as additional say (page 29). 6 Considering the rival contentions, the learned Additional Sessions Judge, Majalgaon allowed the said application by judgment and order dated 24.3.2009 and thereby condoned the delay for 4 years 7 months subject to payment of costs of Rs.10,000/- by the Revision Petitioner i.e. respondent herein within the period of 15 days from the date of said order. 7 Being aggrieved and dissatisfied by the said judgment 4 and order, the petitioner has preferred the present petition assailing the same. SUBMISSIONS : - 8 Learned counsel for the petitioner submits that the order of issuance of process was passed on 13.11.2003 and although the summons was served upon the respondent, he did not appear before the court, and therefore, bailable warrant was required to be issued and executed against him, and thereafter respondent appeared before the court. It is also canvassed that although the order of issuance of process was passed on 13.11.2003, Criminal Revision Application and the application for condonation of delay was preferred after the lapse of about 4 years 7 months i.e. on 16.10.2008 by the respondent herein and the said delay has not been accounted for by him. In fact, it is submitted that the limitation prescribed under Article 131 of the Limitation Act, 1963 is for the period of 90 days from the date of order or date of knowledge. However, in the instant case, although the order of issuance of process was passed on 13.11.2003 and although the respondent had knowledge of the order, he did not choose to file Criminal Revision Application challenging the correctness and legality of the said order within the prescribed period of limitation, and therefore, it 5 is canvassed that grant of application for condonation of delay by the learned Additional Sessions Judge, Majalgaon was unwarranted. 9 In substance, learned counsel for the petitioner urged that the order passed by the learned Additional Sessions Judge, Majalgaon, by allowing Criminal Miscellaneous Application No. 10 of 2008 on 24.3.2009 condoning the delay of 4 years 7 months is erroneous and unsustainable, and therefore, it be quashed and set aside. 10 Learned counsel for the respondent canvassed that although summons was served upon the respondent as per the report dated 26.3.2005 (page 18), the copy of the complaint was not annexed therewith, and therefore, the respondent was unaware about the contents of the said complaint. In the said context, learned counsel for the respondent invited my attention to the report thereof produced at page 18, which discloses that the copy of the complaint was not annexed with the said summons, which in fact is contemplated under Section 204 of the Code of Criminal Procedure, and therefore, it is submitted that the service of summons without serving the copy thereof upon the respondent itself is under doldrums. 6 11 Learned counsel for the respondent also canvassed that liberal approach is required to be adopted while condoning the delay, since opportunity is required to be given to the litigants to contest the matters on merits, which involve the substantive rights of the parties. According to the learned counsel for the respondent, the delay was not caused because of negligence on the part of the respondent, and therefore, same deserves to be condoned in the interest of justice. In substance, learned counsel for the respondent supported the order dated 24.3.2009, passed by the learned Additional Sessions Judge, Majalgaon condoning the delay and also canvassed that the petitioner herein has been duly compensated by the said order, since costs of Rs.10,000/- has been awarded to the petitioner herein, which has been already deposited by the respondent in the trial Court. CONSIDERATION : - 12 I have perused the impugned order dated 24.3.2009, as well as considered the submissions advanced by both the learned counsel for the parties anxiously, and I am inclined to accept the submissions advanced by learned counsel for the respondent, since at the out set, although the summons was served upon the respondent, the copy of the complaint was not annexed therewith, as 7 contemplated under Section 204 of the Code of Criminal Procedure and as reflected from the report thereof, which is produced at page 18, and therefore, it is obvious that the respondent herein was not aware about the contents of the said complaint, which apparently was the cause for the delay in filing Criminal Revision Application challenging the order of issuance of process along with the application for condonation of delay which were preferred on 16.10.2008. Hence, there is justifiable reason for the delay caused in filing Criminal Revision Application by the respondent herein along with the application for condonation of delay before the the learned Additional Sessions Judge, Majalgaon. 13 Moreover, it is settled principle of law that liberal approach is required to be adopted while considering the application for condonation of delay under Section 5 of the Limitation Act, 1963, and in the instant case, the learned Additional Sessions Judge, Majalgaon has rightly observed that the delay is not caused due to negligence on the part of the respondent herein and the respondent herein has put forth the sufficient cause for condonation thereof. Besides that, it appears from the impugned order dated 24.3.2009 that sumptuous cost of Rs.10,000/- has been awarded to the petitioner while condoning the delay by the learned Additional Sessions Judge, Majalgaon, since the application for condonation of 8 delay was allowed subject to costs of Rs.10,000/- by the respondent to the petitioner within the period of 15 days and it is reported that the respondent has deposited the said amount of costs in the trial Court, and therefore, it is apparently clear that the petitioner herein has been duly compensated while condoning the said delay. Accordingly, the impugned order dated 24.3.2009 passed by the learned Additional Sessions Judge, Majalgaon, on the Application for delay condonation allowing the said application appears to be well reasoned order and no interference therein is called for under the writ jurisdiction, and therefore, present petition deserves to be dismissed. 14 However, since the facts and circumstances of the present case disclose that the complaint was filed by the petitioner/ complainant in the year 2003, which is pending for almost 7 years, and therefore, direction is required to be issued to the learned Additional Sessions Judge, Majalgaon to decide Criminal Revision Application expeditiously, preferably within the period of three months from the date of receipt of writ from this court. 15 In the result, present petition being sans merits stands dismissed but with direction to the learned Additional Sessions Judge, Majalgaon, to decide Criminal Revision Application 9 expeditiously, preferably within the period of three months from the date of receipt of writ from this court. 16 Rule stands discharged accordingly. (SHRIHARI P. DAVARE), JUDGE. dbm/crwp570.09