1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 18/2011 IN CRIMINAL APPEAL NO. /2011 (Sunil s/o. Suryabhanji Raut V/S. Shri. Vijay Poonamchand Wanjari, Proprietor of Vijay Flower Merchant) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Shri. S. V. Deshmukh, Advocate for the Applicant Shri. B.D. Chute, Advocate for Respondent CORAM : U. V. BAKRE, J. ORDER RESERVED ON : 23/08/2011 ORDER PRONOUNCED ON : 24/08/2011 1. Heard Shri. S. V. Deshmukh, learned Advocate for the Applicant and Shri. B.D. Chute, learned Advocate for Respondent. 2. The date of acquittal is 12/07/2010, but the present application is filed on 12/01/2011 though Section 378(5) of the Code of Criminal Procedure, inter-alia provides that no application under sub- section (4) for the grant of special leave to appeal from the order of acquittal shall be entertained by the High Court after the expiry of 60 days computed from the date of that order of acquittal. 3. In this regard, learned Advocate Shri. S. V. Deshmukh has argued that provision of Section 12(2) of the Indian Limitation Act, is applicable. 2 4. Learned Advocate Shri. S. V. Deshmukh has relied upon the rulings in the case of “Lala Ram V/s. Hari Ram” reported in AIR 1970 SC 1093, and Ramkrishna Jairam Damdar V/s. Savita and another reported in 2002 CRI. L. J. 1884. With respect to the applicability of Section 5 of the Limitation Act to the application for special leave under Section 417(3) of Code of Criminal Procedure, 1898, there is a ruling of the Hon’ble Supreme Court in Mangu Ram V/s. Municipal Corporation of Delhi reported in AIR 1976 SC 105. 5. The provision of Section 378(5) does not exclude the applicability of Sections 4 to 24 of the Limitation Act. Therefore, as has been rightly argued by Shri. S. V. Deshmukh, Section 12(2) of the Limitation Act is applicable under which the period spent for obtaining certified copy of the Judgment and Order is bound to be excluded. 6. The applicant applied for certified copy of the impugned Judgment and Order on 17/07/2010. The date given for taking delivery was 08/12/2010. The certified copy was ready on 07/12/2010 and it was delivered on 08/12/2010. The present application filed on 12/1/2011 is, therefore, within the prescribed period of 60days. 7. The learned trial Magistrate has acquitted the accused holding that there is no sufficient evidence to prove that the complainant had given hand loan of Rs. 6,00,000/- to the accused. According to the learned trial Magistrate, the agreement for sale which 3 is at Exh. 48 proves that the cheque for Rs. 6,00,000/- was given towards the payment of the balance amount of consideration of the said agreement for sale, which agreement had ultimately failed. 8. From the said agreement (Exh. 48) it is seen that the total consideration was Rs. 16,00,000/-, out of which Rs. 6,00,000/- appears to have been paid. The balance, therefore, ought to have been Rs. 10,00,000/- and not Rs. 6,00,000/-. However, the cheque which is at Exh. 27 is for Rs. 6,00,000/-. 9. No doubt, in the said agreement (Exh. 48), the back side of page ‘1’ contains some hand written words at portion ‘A’ and ‘B’. At portion ‘A’ it is mentioned that a cheque of Rs. 1,00,000/- dated 30/12/2005 was given but it was dishonoured and, therefore, on 04/01/2006, cash of Rs. 1,00,000/- was paid. At portion ‘B’ it is written that a cheque no. 788657 dated 25/06/2006 for Rs. 6,00,000/- drawn on Shikshak S. Bank has been issued. There are signatures and thumb impressions both at portions marked ‘A’ and ‘B’. Learned Advocate Shri. B. D. Chute has argued that the signature of the complainant appears below the said portion ‘A’ and ‘B’ and, therefore, it is sufficiently proved that the said cheque was towards the payment of the balance amount towards the sale of the plot under the said agreement for sale and that it was not towards repayment of hand loan as alleged by the complainant / applicant. 4 10. However, the cross-examination of the complainant reveals that he has denied that the signature under the said portions ‘A’ and ‘B’ belongs to him. There is, however, dispute raised by the applicant (complainant) regarding the signature on the back side of page no.1 of the said agreement Exh.48 as also about the said writing. Learned Advocate Shri. S. V. Deshmukh has relied upon Murarilal v/s. State of M.P. reported in AIR 1980 SC 531 wherein the Apex Court has held that Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writing to ascertain whether the writing is that of the person by whom it purports to have been written. The learned Trial Magistrate does not appear to have considered this aspect of the matter. 11. In view of the above, there are arguable points raised by the applicant. 12. In the result, special leave as prayed for is granted. JUDGE Punde