1 Cri.WP No.997/2010 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.997/2010 (Umesh Vasant Gabane Vs. The State of Mah.) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr.KN Lokhane, Adv. for Petitioner; Mr.KM Suryawanshi, APP for State. *** CORAM : K.U.CHANDIWAL ,J. DATE : 9 th February, 2011. ... 1) Heard. 2) There is delay of 23 days in filing the appeal, challenging the judgment dated 20th June, 2006. The learned Judge has observed in paragraph 9 as under : A perusal of the judgment in RTC No.19/2006 shows “ that it was declared on 20/6/2006. Applicant ought to have preferred appeal within a period of 30 days against the judgment and order. There is a delay of 23 days on his part. Applicant contends that he was ill in between 25/6/2006 to 15/8/2006 and that therefore he could not prefer appeal in time. Applicant contends that he was suffering from a disease in between 25/6/2006 to 15/8/2006. However, the applicant has not led evidence of doctor who was treating him in the said period. Applicant was rather obliged to lead evidence of doctor who treated him in between 25/6/2006 to 15/8/2006. Doctor s evidence could have shown that applicant was ’ ill and that he, therefore, could not take steps for preferring the appeal. A bare word of the applicant that he was ill in between 25/6/2006 to 15/8/2006 cannot be accepted as gospel truth. The applicant has failed to show that owing to illness for a long period, he could prefer appeal in time allowed by law. The applicant has failed to show just and sufficient reason for condoning delay of 23 days on his part in preferring the appeal against the judgment and order of the lower court. As the applicant has not been able to show just and sufficient reason for condoning the delay of 23 days on 2 Cri.WP No.997/2010 his part in preferring appeal against the judgment and order in RTC No19/2006, I hereby record my finding on Point No.1 in the negative.” 3) However, considering the ground realities, it cannot be accepted that the applicant was deliberately protracting the matter. It was his genuine contention that he was not keeping well. Non-leading of evidence of the doctor by itself should not be a fatal blow to oust the appellant from his availing legal remedies. 4) Consequently, rejection recorded by the learned District Judge-3 and Additional Sessions Judge, Ahmednagar dated 5th October, 2010, is set aside. The delay of 23 days in preferring the appeal, challenging the judgment in RTC No.19/2006, recorded by the Chief Judicial Magistrate, Ahmednagar, is condoned. 5) Writ Petition allowed as above. (K.U.CHANDIWAL) JUDGE bdv/