T BILASPUR (Hon. Mr. Jstice Pritinker Diwaker) Cri. M.P. No. 19 of 2009 M Karni Coal Carriers Pvt. Ltd. Co. Cof. Retd. D.S. Sachar Post for pronouncement of order on 2—5-2010 1 Sd/— Pritinker Diwaker Judge HIGH COURT OF CHHATTISGARH A u 2 PETITIONER a VERSUS RESPONDENT / (Hon. Mr. Justice Pritinker Diwaker) CRI. M. P No. 129/2009 APPELLANT Ma Karni Coal Carriers Pvt. Ltd. Co. VERSUS RESPONDENT Col. Retd. D.S. Sachar Shri Prashant Jaiswal learned Sr. counsel with Shri Shelf Khan for the appellant. Shri Arvind Singh counsel for the respondent. APPLICATION UNDER SECTION 378 14! OF THE CODE OF CRIMINAL PROCEDURE FOR GRANT OF SPECIAL LEAVE TO APPEAL ORDER (l'L05.2o10) Heard on lA No. 01, application for condonation of delay in filing the application for special leave to appeal. Reply to this application has been filed by the respondent and the matter is being seriously contested by the counsel for the respondent. 2. Facts of the case in short are that the petitioner — Ma Karni Coal Carriers Private Limited Company is dealing in the Coal business in the State of Chhattisgarh and one P.C. Puri is claiming himself to be the Managing Director of the same. Respondent herein namely Col. D.S. I Sachar is said to be the Director of Ma Karni Coal Carriers Private Limited Company. lt is stated that in business transaction a cheque dated 2.12.2003 for Rs. 4,40,000 was issued in favour of the petitioner but as the same was dishonoured,‘on 21.7.2004 a complaint case was filed before the Additional Chief Judicial Magistrate, Surajpur, under Section 138/142 of the Negotiable Instrument Act, 1981. The said complaint case was however dismissed by the learned Magistrate on 24.8.2006 under Section 256 of the Code of Criminal Procedure for non prosecution as neither the petitioner itself nor its counsel had appeared before the Court. Immediately after coming to know about the dismissal of the complaint //i case, the petitioner had filed an application for its restoration on the same (4 \ l I,‘ day but it was also dismissed on 8.3.2007 for want of prosecution. ln the meanwhile, on 16.11.2006 one Criminal Misc. Petition No. 169/2006 was filed by the petitioner before this Court under Section 482 of the Code of Criminal Procedure assailing the order dated 24.8.2006 which was listed before this Court on 18.7.2007 as the process fee was not paid by the l *2/- petitioner. On 18.7.2007 this Court had passed a peremptory order that if the process fee was not paid within 7 days, the petition would stand dismissed without reference to the bench. It appears that as process fee was not paid by the petitioner within the stipulated time, the said petition stood dismissed by virtue of the order passed by this court on 18.7.2007. Thereafter, on 10.8.2007 the petitioner filed a Misc. Cri. Case (PR) No. 3771/2007 before this CoUrt for restoration of Cri. Misc. Petition No. 169/2006 which was dismissed by virtue of order passed by this Court on 18.7.2007. The said restoration application was withdrawn by the petitioner on 26.9.2007. It appears from the record that a fresh Cri. Misc, Petition No. 479/2007 was filed by the petitioner on 12.10.2007 challenging the order dated 24.8.2006 which was earlier challenged by him in Cri. Misc. Petition No. 169/2006. The second petition was disposed of by this Court vide order dated 23.1.2009. From the said order passed on 23.1.2009 it is reflected that at the time of argument it was informed by the petitioner to this Court on the basis ofthe order sheets that against the order dated 24.8.2006 passed by the learned Magistrate a restoration application has been filed by him which is still pending. Believing this statement to be correct and further by observing in paragraph 5 of the order of this Court, this Court disposed of the petition on 23.1.2009 with a direction to the Court below to decide the pending restoration application as early as possible preferably within a period of 30 days from the date of receipt of copy of the said order It appears that the present petxtion for grant of speCIal leave to appeal has been filed by the petitioner under Section 378 (4) of the Code of Criminal Procedure before this Court on 4.3.2009 and as there is delay of 863 days in filing the same, the petitioner has filed an application for condonation of delay. 3. Counsel for the petitioner submitsthat from the very beginning the petitioner is bonafidely prosecuting its case and only on account of single default on its part the complaint case was dismissed by the learned Magistrate on 24.8.2006. He submits that immediately thereafter the petitioner had approached this Court by filing a petition under Section 482 of the Code of Criminal Procedure (Cr M P No 169/2006) but unfortunately the same was also dismissed and ultimately on 23 1 2009 in 1 x Criminal Misc Petition No 479/2007 this Court had directed the trial Court to decide the pending application for restoration of the crimrnal case filed against the order passed on 24.8.2006. Counsel for the petitioner submits } that after passmg of the order dated 23.1.2009 the petitioner came to r. know that its restoration application was already dismissed on 8.3.2007 for vE“ want of prosution and then after obtaining the certified copy of the same on 4.2.2009 the petitioner filed the present petition efore this Court on 4..29 for grant of special leave under ection 378 (4). Cr.P.C. According to learned Sr. Counsel appearing fr the'petitioner in a case filed under Section 138 of the Negotiable Instrument Act, the Court ought to have taken a lenient View rather than a harsh ne by dismissi the petion for a single defaul on the part of the petitioner. He submits that law in respect of limitation has to be applied liberally an if sufficient reason has be shown, Court should conne the delay. He h laced reliance on the decisions of the Supreme COurt in the matter of Mangu reported in nd in the matter of Ram and others v. Municipal Corporation of Delhi AIR 1976 SC 105 a N. Balakrishnan v. M. Krishnamurthy reported in He rther submits that the present petition and the aplicatin for codonatio of delay as to be seen from the angle of granting substantial justice and merely on technical ground the same should not be dismissed. He further submits that if the delay is not condone then the petitioner shall suffer an irreparable loss nd will be deprived of getting its amount from the respondent. He further submits that the petitioner will be left ith no other option but to file a civil suit for recovery of the ount of s. 4,40,000 which will take much time and therefore the petitionr should not be deprived f its legitiat right. 4. On t other hand counsel for the respondent opposes the application for condonation of delay and submit that the delay of 863 days canot be condoned in a mechanical manner. He submits that the petitioner has not assigned any valid reason for condonation of delay and from the application itself it is clear that del has not been properly explained by the petitioner. He subits that on 24..2006 the complait case filed by the petitioner was dismissed and the resondent was acquitted by virtue of section 256 of the Code of Criminal Procedure. He submits tht o ‘the'rit h arued i avour of the respondent, the same cannot be taen ay by the petitioner by filing an apication for condonation of delay without showing sufficient cause for the same. He [—‘H/ submits that on 24.8.2006 itself the petitioner had filed an application for l yr H restoration of the complaint case a'nd the reply to the same was also given l by the respondent. The factum of filing reply by the respondent and receipt of copy of the same by the petitioner has not been disputed by the l petitioner before this Court. He submits that in the reply dated 25.8.2006 it l was specifically pointed out that a criminal case dismissed under Section . 256 of the Code of Criminal Procedure cannot be restored in view of the ec b 300 S o o ng ti t d en do as p AIR 1998 SC 3222. fu po nn h d a w am R e o me he s n ay m 8 n p a nce gh as cc n f / k aw pl judgment of the Supreme Court in the matter of Maj. Genl. A.S. Gauraya and another v. S.N. Thakur and another reported in AIR 1986 SC 1440. He submits that once this legal position was brought to the knowledge of the petitioner, the criminal complaint dismissed under Section 256 of the Code of Criminal Procedure, cannot be restored. According to the counsel for the respondent, the petition under Section 378 (4) of the Code of Criminal Procedure ought to be filed immediately. He submits that approach of the petitioner was casual from the beginning itseif and therefore the application for restoration of the complaint case was dismissed for want of prosecution on 8.3.2007 by the learned Magistrate. lt has been argued that even the first application filed before this Court under Section 482 of the Code of Criminal Procedure was not maintainable because simultaneously the petitioner was prosecuting the case in two courts. He submits that on the one hand the order dated 24.8.2006 was assailed before this Court by filing Cri. Misc. Petition No. 169/2006 and on the other hand he was prosecuting his restoration application also which was ultimately dismissed on 8.3.2007 for want of prosecution. He submits that even in the High Court the petitioner was very casual and therefore Cri. Misc. Petition No. 169/2006 was dismissed on account of the order dated 18.7.2007. He also submits that on 23.1.2009 the petitioner was well aware that his restoration application has also been dismissed for want of prosecution on 8.3.2007 but yet he did not inform this Court and the order was obtained on 23.1.2009 seeking a directionto the trial Court to decide the case within a period of 30 days and in fact the said case was not pending and was already dismissed on 8.3.2007. lt is argued that on 23.1.2009 this CoUrt had disposed of Cri. Misc. Petition No. 479/2007 and the petitioner had obtained the certified copy of the order dated 24.8.2006 on 4.2.2009 but yet the present petition has been filed before this Court on 4 3 2009 i e 30 days thereafter without even explaining the delay properly as Is required under the law He submits that the petitioner cannot derive any benefit from his statement that he was regularly attending the Court and only on account of srngle default on its part the case was dismissed. He submits that as the petitioner has not explained the delay of 863 days in filing the present petition, the same cannot be condoned. He placed reliance on the ’ decisions of the Supreme Court in the matter of Rabindra Nath Samuel ' Dawson vs. Sivakasi and Others reported in 1973 (3) SCC 381, in the ‘ matter of Ajit Singh Thakur Singh and Anothe‘r vs. State of Gujarat i reported in 1981 (1) SCC 495, in the matter of Maj. Genl. A.S. Gauraya j L; ,. @ y §"/ and Another vs. S. N. Thakur and Another reported in 1986 (2) SCC 709 and in the matter of S. P. Chengalvaraya Naidu (dead) by L.Rs reported in (1994) 1 SCC 01. 5. From the rival submissions of the parties it is clear that on account of non-appearance of the complainant, the case was dismissed on 24.08.2006 under section 256 of the Code of Criminal Procedure and on that very day the petitioner had filed an application for restoration of the same. Though the application for restoration was filed by the petitioner, suppressing this fact he had filed Cr.M.P. No.169/2006 before this court which was also dismissed for non~compliance of the order passed by this court on 18.07.2001 In the subsequent'M.Cr.C. (P.R.) No.3771/2007 filed before this court on 26.09.2007, the petitioner again suppressed the fact that he had filed the restoration application of the complaint case before the said court. Yet again Cr.M.P. No. 479/2007 was filed by the petitioner on 12.10.2007 and in that petition also no disclosure was made by the petitioner about the application for restoration of the complaint case filed by him on 24.08.2006 and ultimately on 23.01.2009 this fact was brought to the notice of the court that some restoration application is pending before the court below. Here also, the petitioner was obliged to inform this court that the restoration application filed by him before the court below was already dismissed for non-prosecution on 08.03.2007. Though the petitioner was prosecuting the complaint case before the court below, simultaneously he had filed a petition before this court also but it appears that he has deliberately suppressed this fact before this court. On the basis of information given by the petitioner and also on the basis of the material available on record, Cr.M.P. No. 169/2006 was disposed of by this court on 23.01.2009 with a direction to the court below to decide the pending case whereas the said case was already disposed of by it. Ultimately on 04.03.2009 the petitioner has filed the present petition under ,,~ section 378 (4) of the Code of Criminal Procedure for grant of special ,t‘ , leave to appeal with the delay of 863 days. Yet another important fact to ’r—e/ f. be noticed by this court is that before the court below restorationl H,\ g application was filed by the petitioner on 24.08.2006 and reply thereto was‘ _ .. . / filed by the respondent on 25.08.2006 specifically pointing out that the criminal case dismissed under section 256 of the Code of Criminal; Procedure cannot be restored in view of the judgment of the Supreme} Court in the matter of Maj. Genl. A.S. Gauraya and Another vs. S. N. Thakur and Another (Supra). Thus, it was well within the knowledge of the petitioner that restoration of the complainant case cannot be done and i l l l ”3" therefore he ought to have approached this court immediately by filing a petion under section 378 (4) of the Code of Criminal Procedure. Though copy of the reply filed by the respondent was received by the petitioner, he chose to pursue his petition under section 482 of the Code of Criminai Procedure before this Court one after the other and he has not cared to file the petion under section 378 (4) ofthe Code of Criminal Procedure. 6. True, it is that while considering the application for condonation of delay the court has to consider all aspects of the case particularly while granting substantial justice, it is equally true that right and interest of the orther party has also to be kept in mind. ln this case, once the complaint case of the petitioner was dismissed under Section 256 of the Code of Criminal Procedure, result of the same would be acquittal of the accused persons and thus a right has been accrued in their favour. It appears from the record that the petitioner was very casual in prosecutring his case before the courts. His complaint case was dismissed on 24.8.2006 for non-appearance either of the petitioner or his counsel and even his restoration application was dismissed for want of prosecution before the court below on 8.3.2007. Not only this, when this Court has passed peremptory order in Cr.M.P. No. 169/2006 on 18.7.2007, the order was not complied with by the petitioner, process fee was not paid by him and therefore it was dismissed for non compliance of the order passed by this court. 7. Thus, this Court finds it difficult to condone the delay of 863 days in filing the present petition. 8. Yet another important point to be noticed by this Court that on 23.1.2009 Cr.M.P. No.169/2006 was disposed of by this Court with a direction to the trial Court to decide the case within a period of 30 days and infact the- said-case was not pending and had already been dismissed on 8.3.2007. Admitted position is that the petitioner had obtained certified copy of the order dated 24.08.2006 passed by the Magistrate, on 4.2.2009 but yet the present petition has been filed before this Court on 4.3.2009 i.e. after 3O days from the date of receiving certified copy and no explanation whatsoever has been given by the petitioner i l} the application for condonation of delay. n M7- petition is rejected. 9. if the entire appiication for condonation of delay filed by the petitiener is seen it becomes apparent that no sincere effort has been made by the petitioner in filing the present petition. 10. Considering ail the aspects of the matter, cases cited by the parties, this court is of the considered opinion that in a case like the present one such an inordinate delay of 863 days cannot be condoned. 11. Accordingly, l.A. No. 1 for condonation of delay in tiling the present limitation. “‘ Sd/- . ' Pritinker Diwaker Judge 12. Consequetly, the petition itself is dismissed being barred by