IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.61 OF 2008 IN CRIMINAL APPEAL NO.56 OF 2008 Manish Mahal CHS Ltd., )..Applicants Versus The State of Maharashtra & Anr. )..Respondents ---- Mr.K.K.Khanna for the applicants. Mr.M.S.Udeshi respondent no.2 in person. Mr.A.S.Shitole APP for the respondent/State. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 5.8.2008. PC 1. This is an application for condonation of 417 days delay in filing of the appeal which has been filed under Section 441 of the Code of Civil Procedure. I have perused the application for condonation of delay. Though the appeal is styled as having been filed against the orders dated 19.8.2004, 8.7.2005 and 9.3.2006, it is abundantly clear that orders dated 19.8.2004 and 8.7.2005 have nothing to do with Criminal law and they are orders which have been passed in the Civil suit. The order dated 19.8.2004 is a judgment and order disposing of the Civil Suit and the order dated 8.7.2005 is an : 2 : order dismissing the review application against the aforesaid judgment and decree. It is therefore, clear that present appeal is only against the order dated 9.3.2006 which is an order, inter alia refusing to take action under Section 340 of Code of Civil Procedure. 2. In the condonation of delay application, while justifying the delay of 417 days, I find that it is contended that the delay was not deliberate or intentional but only because the appellant became a helpless victim of a person operating as an Advocate in the High Court but specializing in cheating clients. An allegation is made against their own earlier Advocate Mr.Vohra and it is contended that Mr.Vohra tried to help and favour the respondents’ Advocate Udeshi. It is contended that it was impossible for the society to obtain the advice of a suitable Advocate against Advocate Udeshi in the matter of Section 340 of Cr.P.C. since other Advocates were afraid that Udeshi would harass them by filing false and frivolous cases of contempt and indulge in defamation of the opponent advocate and intimidate them. It is contended that the present Advocate Dr.Khanna was out of the country and hence he was not available to the society. That he could take up the case only when he returned back to India. The date on which he returned back to India is not mentioned in the application. It was orally : 3 : contended by the Advocate for the appellants that he returned back to India in March-2007 and thereafter, a Writ petition came to be filed on 30.7.2007. The record indicates that the said Writ petition was found to be incompetent and therefore, it was converted into the Criminal Application. By various orders, ultimately, the applicant was directed to file this appeal and accordingly, this appeal came to be filed. 3. From the aforesaid facts, I find that there is a substantial delay from the date of the passing of the order i.e. 9.3.2006 till filing of the 1st application on 30.7.2007. The contention raised is that all Advocates were afraid of Udeshi. It is contended on behalf of Udeshi who is appearing in person that the actual delay is more than 417 days. In his reply he has contended that the actual delay is 668 days in so far as impugned order dated 9.3.2006 is concerned. However, he is not in a position to give actual calculation. Be that as it may, this is an application in which serious allegations of fraud are made against the respondent-Advocate. In my view, matter requires consideration. In the circumstances, though I am not satisfied with the reasons given in the application, in the interest of justice, I am inclined to condone the delay. Delay accordingly condoned. Application stands disposed off. : 4 : CRIMINAL APPEAL NO.56 OF 2008 1. Heard both sides. Perused the entire record. There is no substance in the appeal and the same requires to be dismissed for the following reasons :- (i) Appeal has been filed impugning the judgment and order passed on 9.3.2006 by the City Civil Court dismissing prayer (e) Notice of Motion No.4004 of 2005. Prayer-(e) was to the following effect :- " A notice be served on the accused/plaintiff Mr.Mahendra Shivji Udeshi for action in respect of the offences under sections 177, 181, 182, 193 to 199 of IPC committed by him in relation to and in connection with the proceedings in this Court of Suit No.4201/1990 so as to obtain a decree against the defendant by fraud against the Court and the defendant ". (ii) It is seen from the impugned judgment and order that the Court did not consider the grant of this prayer on the ground of a concession made by the learned Advocate for the appellant Shri Vohra. In the judgment it is observed as under :- " The very fact that learned advocate for defendant did not press any other prayers of this motion except the prayer as regards validity of decree in the absence : 5 : of notice under section 164 MCS Act, clearly shows that the prayer clause (e) of the motion is yet another instance of false and frivolous litigation." (iii) It is contended by the learned Counsel for the appellant that Mr.Vohra did not protect the interest of the appellant/society and wrongly conceded to the non consideration of prayer clause-(e). If this was the case then the appellants had cause for making a grievance against Mr.Vohra. On an enquiry, it has been conceded that no action has been taken against Mr.Vohra by filing a complaint with the Bar council or in any other forum. Be that as it may, since there are allegations against the respondent Advocate, I have perused the entire record afresh without taking into account any concession particularly as any concession by an Advocate should not prejudice the client. (iv) On perusing the affidavit in support of the Notice of Motion No.4004/2005, I find that it was contended that the respondent/plaintiff had concealed the important fact of criminal misappropriation by him in the sum of Rs.92,875/- belonging to the society and which he took under his receipt. That he had also concealed the important fact that he has obtained Rs.92,875/- by false and fraudulant misrepresentation to the effect that he would require to deposit this amount to the Registrar, Co-operative Societies. : 6 : (v) On reading the plaint, I find that in paragraph-10 the respondent/plaintiff has clearly stated factum of having taken Rs.92,875/-. It is not expected that plaintiff would admit that the amount was misappropriated. The plaintiff has pleaded that out of this amount, he has given credit for the amount of Rs.56,000/- and in the plaint he sought to recover only the balance amount. In my view, this was a matter which ought to have been dealt with in the written statement. Unfortunately, in this appeal the appellant has chosen not to file any written statement and even when the matter was being argued, the Advocate stated that he did not have the said written statement in his possession. Be that as it may, there was an ex-parte decree passed by the Court in the matter in favour of the respondent/plaintiff. Admittedly, that decree has not been challenged by filing any First Appeal. The said decree was passed on 19.8.2004 and the review was also dismissed on 8.7.2005. Both these orders remained unchallenged. In my view, therefore, on merits, there is no case made out. There is no substance in the appeal. Appeal stands dismissed. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)