SSK/920 1 APL 809 & 810.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NOS. 809 & 810 OF 2011 KSL and Industries Limited ....Applicant Versus Silkon Silk Mills (Exports) Ltd. & Ors. ...Respondents Mr. Yashpal Thakur i/b. M/s. Paras Kuhad & Associates, Advocate for the applicant. Mr. Sanjay R. Upadhayay, Advocate for respondent no.2. Mr. A. S. Shitole, APP for the State. CORAM : RANJIT MORE, J. DATED : 18th NOVEMBER, 2011. P.C.: Rule. Rule is made returnable forthwith. Mr. Upadhayay, learned counsel and Mr. Shitole, APP waives service on behalf of respondent no.2 and State respectively. By consent of the parties, the applications are heard finally. 2. Both the criminal applications challenge the legality and validity of common order dated 25th July, 2011 passed by learned Additional Sessions Judge, Sewree, Mumbai in Criminal Miscellaneous Application Nos. 26 and 27 of 2011 whereby delay of 22 and 25 days’ respectively occurred in filing revision applications was not condoned. 3. The applicant is the original complainant in complaints filed before the Magistrate under Sections 138 and 142 of the Negotiable Instruments Act. Out of four accused, two were appearing in the case and SSK/920 2 APL 809 & 810.11 two were absconding. In these circumstances, the applicant filed two separate applications under Section 299 of the Code of Criminal Procedure, 1973 for leading evidence in the absence of absconding accused. Both the applications came to be rejected by the Magistrate by common order on 5th October, 2010. Certified copy was applied for on 30th October, 2010 and the same was ready on 9th December, 2010 and the applicant filed two revisions on 8th /9th February, 2011. Since, there is delay of approximately 22 and 25 days respectively, separate Miscellaneous Application Nos. 26 and 27 of 2011 respectively were preferred for condonation of delay, which came to be dismissed by passing the impugned order. 4. The applicant claims condonation of delay on the ground that the authorized representative of the applicant who was representing the applicant in the trial court has left the services of the applicant, and therefore, the decision regarding filing of the revision could not be taken. Learned Additional Sessions Judge rejected the applications on two grounds. Firstly on the ground that one Madhav Magar and Santhosh Talekar, Legal Officers of the Applicant-Company were authorised to represent the Company in legal matters by Resolution dated 16th January, 2008 and Madhav Magar is still in services of the Applicant-Company. Secondly on the ground that the applicant has not explained day-to-day delay. 5. Having heard learned counsel for the respective parties, in my opinion, learned Sessions Judge could not have rejected the delay condonation applications. Madhav Magar, Legal Officer was authorised to represent the Company in legal matters in pursuance of Resolution passed on 16th January, 2008. The complaints, in question were, however, filed in the Year 1996, which is prior to resolution passed in the Year 2008. The SSK/920 3 APL 809 & 810.11 applicant made categorical statement that one Mr. Nigam Kumar, Employee of the applicant was representing the applicant in the complaints in question. He resigned the services of the applicant, and thereafter, the applicant took sometime to appoint a new representative in the aforesaid complaint. This averment is not denied by the respondent by filing affidavit in reply. In these circumstances, reliance by the Sessions Court on Resolution dated 16th January, 2008 is misplaced. The applicant has made specific averment in grounds (a) and (b) as follows: “ (a) The Authorised Representative of the Applicant, who was representing them in the trial court, has left the services of the Applicant and therefore the decision regarding filing of the Criminal Revision Application could not be taken on behalf of the Applicant. (b) Due to non availability of the Authorised Representative of the Applicant, there was no follow-up regarding the impugned Order dated 05th October, 2010 and after appointment of new Authorised Representative the decision regarding filing of Criminal Revision Application was taken.” If the explanation given by the applicant is considered in proper perspective, in my view, sufficient cause is given by the applicant for condonation of the delay. 6. Reasoning of learned Additional Sessions Judge that the applicant has not explained each and every day’s delay also cannot be sustained. The Apex Court in the case of State of Nagaland Vs. Lipok AO and Ors. reported in AIR 2005 SC 219 in Paragraph 14 observed as follows:- “14.In O. P. Kathpalia v. Lakhmir Singh : AIR 1984SC1744), a Bench of three Judges had held that if the refusal to SSK/920 4 APL 809 & 810.11 condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector Land Acquisition v. Katiji (1987 (2) SCC 107), a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the court to apply the law in a meaningful 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. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. 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. 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. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this SSK/920 5 APL 809 & 810.11 perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the State is the applicant. The delay was accordingly condoned.” 7. In view of the observation made by Apex Court and taking overall facts and circumstances into consideration, in my view, the applicant’s applications for condonation of delay ought to have been allowed. The criminal applications, are therefore, disposed of by passing the following order: 1. The impugned order is quashed and set-aside. 2. Miscellaneous Application Nos. 25 and 27 are allowed and the delay is condoned. 3. Learned Sessions Judge, Sewree, Mumbai is directed to hear the applicant’s revision applications on merits and in accordance with law. (RANJIT MORE, J.)