1 IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL MISCELLANEOUS APPLICATION NO.235 OF 2009 IN STA NO. 1899. WITH CRIMINAL MISCELLANEOUS APPLICATION NO.236 OF 2009 IN STA NO. 1902 . CRIMINAL MISCELLANEOUS APPLICATION NO.235 OF 2009 IN STA NO. 1899. Shri Alfred Godinho, Major of age, businessman, Indian National, Proprietor, C/o. M/s. Godinho Tyres, Tisk-Sanvordem, Curchorem, Pincode 403706 ….... Applicant. Versus Shri Suresh Dessai, r/o. Medewada, Veroda, Cuncolim Goa. .….... Respondent. Mr. V. Parsekar, Advocate for the applicant. Mr. Arun Bras Desa, Advocate for the respondent. WITH 2 CRIMINAL MISCELLANEOUS APPLICATION NO.236 OF 2009 IN STA NO. 1902 . Shri Alfred Godinho, Major of age, businessman, Indian National, Proprietor, C/o. M/s. Godinho Tyres, Tisk-Sanvordem, Curchorem, Pincode 403706 ….... Applicant. Versus Shri Vimlesh Dessai, r/o. H. No. 2035/5, Tukabadm Kegdicatto Cuncolim Goa. .….... Respondent. Mr. V. Parsekar, Advocate for the applicant. CORAM :- U. D. SALVI, J. DATE : 26 th November, 2009. ORAL ORDER:- Heard. Perused applications, affidavits in support and annextures thereto. 2. The respondents have chosen not to file any replies on record. Learned Advocate Mr. Arun Bras De'sa, for the 3 respondent- Suresh Dessai in Criminal Miscellaneous application no. 235/2009 however submits that he proposes mere denial of the contentions in the application for condonation of delay and does not wish to qualify any factual thing for countering the contentions. 3. The applicant Alfred Godinho, original complainant in criminal case nos.40/N/05 and 41/N/05 lodged the said cases against the respondents in criminal Miscellaneous application nos. 235/2009 and 236/2009 respectively in the Court of J.M.F.C. Sanguem under section 138 of Negotiable Instruments Act, 1881. On account of the acquittal of the respondents in the said cases on 28.11.2008, the applicant was expected to appeal against the said orders of acquittal within 60 days there from. Delay in preferring the appeals has now prompted the applicant to move the present applications for its condonation. 4. According to the applicant, On his request his lawyer in trial Court applied for certified copies of the said orders on 28.11.2008 the same day and copies were collected on 4 30.12.2008. The applicant states that he was under bonafied impression gathered due to the advice of his advocate in the trial Court that period of limitation was 90 days. He, therefore, approached his advocate on 19.1.2009 when he discovered that certified copy of the order in Criminal case no. 41/N/2005 supplied did not have page number 2 therein. Thereafter, the applicant states, a fresh application was made to the Court for getting new set of certified copies on 22.1.2009. New set of copies according to the applicant were delivered on 29.1.2009. Labouring under bonafide belief regarding the prescribed time limit the applicant states, he approached the High Court lawyer on 25.4.2009, where he was informed that the actual period of limitation was 60days and not 90 days from 28.11.2008 and the same had expired in January, 2009 and for the purpose of preferring appeals, the delay condonation applications would have to be moved. The applicant adds that he could not thereafter, trace out incomplete certified copy of the impugned order which was essential for moving the delay condonation applications till 10.5.2009. Thereafter, the applicant states, he was informed that this Court was on vacation and the appeals could be filed on 5 8.6.2009 on reopening. Accordingly, it is revealed, the appeals with the delay condonation applications were filed on 8.6.2009. 5. Learned Advocate V. Parsekar for the applicant submits that in the matter of such kind the Court are expected to be liberal in giving meaning to the expression “sufficient cause” in the section 5 of the Limitation Act, 1963 and looking at the explanation furnished for the condonation of delay by the applicant, it is just a necessary to condone the delay, particularly keeping in mind the amount of loss and irreparable injuries that would occasion to the applicant due to the termination of lis either by default or inaction and defeating valuable right of the party to have decision on merits. He urged the court to strike a balance between resultant effect of the order to be passed upon the parties either way. In support he relied upon the judgment reported in AIR 2002 SC 1201 Ram Nath Sao Vs. Gobardhan Sao. 6. Countering the submissions made on behalf of the applicant learned Advocate Mr. A. De'sa submitted that it is easy to plead the cause for delay but difficult to convince and explain 6 the delay caused due to in action of the applicant on each day, and this can be gathered from the reasons pleaded in the applications. According to him, there has been gross in action on the part of a businessman who normally remain agile in monetary transactions. According to him, the gross inaction or negligence on the part of the applicant dis-entitles him (the applicant) to get the delay condoned in the present appeals. 7. Examination of the record reveals that the copy of the impugned order in criminal case no. 41/N/05 supplied initially is incomplete in as much as page no. 2 therein is missing. However, it is not so as regards the impugned order in criminal case no. 40/N/05. It is the case of the applicant that he was informed by his lawyer that it would be advisable that the appeal in both the cases were to be filed and proceeded together. It is hard to believe a fact that any Advocate would give such an advice when there are two separate cases which were decided after recording the evidence separately. Pertinently, none has been specifically named as a lawyer giving such advice. 7 8. The applicant has not furnished any convincing reason for his inaction between 29.1.2009 to 25.4.2009. Only thing therefore which can be perceived from the applications is that the applicant, a businessman was indulging in dilatory strategy to see whether his monetary expectations in the said cases could be fulfilled without taking recourse to the law. 9. The Hon'ble Apex Court while exhorting the courts below to adopt liberal view in the matter of condonation of delay made the following comments:- “Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly........ It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the Court must show utmost consideration to the suitor.” 8 10. In the instant case the explanation for condonation of delay smacks of or has been put forth as part of a dilatory strategy on the part of the applicant and there has been paucity of convincing reason for condonation of delay of 189 days in the present case. The applications are, therefore, rejected with no order as to costs. U. D. SALVI, J. vn*