1 IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL MISC. APPLICATION NO. 102 OF 2009 Nazario S. Pinto, Major of age, Occupation business, Resident of H. No.43, Varca, Salcete, Goa. .. Applicant v/s. 1. Pandu K. Komarpant, Son of Kushali Komarpant, Resident of H. No.643, Tembewada, Nagorcem, Canacona, Goa. 2. State of Goa (through the Public Prosecutor, High Court, Panaji, Goa). .. Respondents Mr. Ryan Menezes, Advocate for the Applicant. Mr. P. A. Kamat, Advocate for the respondent no.1. Ms. Winnie Coutinho, Public Prosecutor for the respondent no.2. 2 CORAM : N. A. BRITTO, J. DATE : 4TH SEPTEMBER, 2009. ORAL ORDER 1. Heard. 2. By the present application, the petitioner seeks condonation of delay, from 26.6.08 to 5.3.09 in filing criminal revision which has been filed with the main prayer which reads as follows:- a) That the offence u/s 138 of the Negotiable Instruments Act be compounded and the Judgment & Order passed by the Ld. J.M.F.C in Criminal Case No.20/N/04 dt. 16.1.06 and Judgment & Order passed by the Ld. Sessions Judge in Criminal Appeal No.21/06 be quashed and set aside. 3. The petitioner is an accused who is convicted by the Learned J.M.F.C under Section 138 of the Negotiable Instruments Act, 1881, by Judgment dated 16.1.06, for dishonour of a cheque of Rs.2,50,000/-. The petitioner preferred an appeal, and the appeal came to be dismissed by the Court of Sessions on 16.7.07. 3 4. The petitioner filed an application on 17.10.07 signed by both parties to compound the offence, but the same came to be dismissed on the same day by the Learned trial Court. The Petitioner then filed a revision before the Court of Sessions, against the said order of the Learned J.M.F.C dated 17.10.07 but the revision petition came to be dismissed by the Learned Additional Sessions Judge by order dated 26.6.08 and in dismissing the revision petition the Learned Additional Sessions Judge referred to the case of State of Orissa V/s. Ram Chander Agarwala (1979 Cri. L.J. 33) and observed that once the case was disposed off, the Court becomes functus officio, and it cannot permit the compounding of an offence and further held that after the Criminal Case bearing No.40/2004 was disposed of by the Learned J.M.F.C, the Learned J.M.F.C had become functus officio and had rightly dismissed the application dated 17.10.2007. 5. It appears that on 2.4.08 i.e. before the revision application filed by the petitioner was dismissed on 26.6.08, the petitioner/accused paid to the respondent/complainant an amount of Rs.2,85,000/- which 4 was the amount of compensation, ordered to be paid by the Learned J.M.F.C, by order dated 16.1.06. 6. The respondent/complainant presently is not interested in compounding the offence and the application for condonation of delay had been opposed by him interalia, stating that the petitioner has not explained the delay in filing the application for condonation from 26.6.08 till 5.3.09. Shri Kamat, Learned Counsel appearing on behalf of the respondent, submits that if at all the receipt for the sum of Rs. 2.85,000/- was issued on 2.4.08 it was also because the petitioner had promised to pay the amount ordered to be paid by the State Consumer Disputes Redressal Commission i.e. a sum of Rs.2.50,000/- with interest at the rate of 12% from 17.12.03 and Rs.10,000/- of compensation and Rs.1,000/- of costs. Learned Counsel further submits that when the receipt dated 2.4.08 was issued by the respondent the execution to recover the said sum ordered to be paid by the said Commission was pending before the said Commission. 7. Shri Menezes, the Learned Counsel appearing on behalf of 5 the petitioner submits that the amount due as regards the dishonour of cheque was settled between the petitioner and the respondent was paid. Learned Counsel further submits that, if at all the petitioner, filed an application for compounding the offence before the Learned J.M.F.C, it was because of wrong advice given to the petitioner by his Counsel. Learned Counsel further submits that even after the order dated 26.6.08 was passed by the Learned Additional Sessions Judge, dismissing the revision petition, the petitioner was again advised by his advocate that having made payment to the respondent of compensation awarded of Rs.2,85,000/-, the matter stood settled between the parties. Learned Counsel further submits that the petitioner was shocked when in January this year the petitioner came to know that the matter was not settled when a non bailable warrant was issued against him. It is further submitted that thereafter the petitioner contacted another advocate who took a search of the file and then filed the present petition, after obtaining certified copies of the orders previously passed, which took some time. In support of his submissions Shri Menezes has placed reliance on various decisions, but before referring to them, let me go to the case of Mata Din V/s. A. Narayan (AIR 1970 SC 1953). Of late it 6 has become a practice of many litigants, to change a lawyer, engage another and blame the former and file such application, or review application, etc. Blaming the previous advocate has thus become a cure for many ills. The Apex Court in Mata Din (supra) stated as follows:- “The law is settled that mistake of Counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of Counsel by itself is always a sufficient ground. It is always a question whether the mistake was bonafide or was merely a device to cover an ulterior purpose such as latches on the part of the litigant or an attempt to save limitation in an underhand way” (emphasis supplied). 8. In Radha K. Rai v/s. Allahabad Bank {2000 (9) SCC 733} one Advocate Varma had kept appellant in that case, under the impression that the appeal was already filed and as the progress of the matter was not very satisfactory, he engaged one Advocate Mrs. Jain, who upon inquiry came to know that the appeal was not filed and therefore the Apex Court held that he appellant was a victim of misrepresentation by his own Advocate and found that the appellant was vigilant in prosecuting the appeal and the cause shown was sufficient to condone the delay. 7 9. In the case of Ram Samujh and others V/s. 1st Additional Civil Judge, Jaunpur) {1996 STPL (LE–Civil) 7007 All} reliance was placed on the decision of the Apex Court reported in AIR 1987 SC 1353 and relying on the same the Allahabad High Court did not interfere with the order of the trial Court condoning the delay. The delay in that case was on account of illness of the Counsel of the contesting respondent for about a month. 10. In N. Balakrishnan V/s M. Krishnamurthy (AIR 1998 SC 3222), there were certain lapses on the part of the advocate and the client had even obtained an award against the advocate from the Consumer Disputes Redressal forum and it was observed by the Apex Court as follows:- “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 malafides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party 8 deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for his loss”. 11. M/s. Concord of India Insurance Co. Ltd. V/s. Smt. Nirmala Devi and others (AIR 1979 SC 1669) was decided on the basis of the decision of Kerala High Court in the case of State of Kerala V/s. Krishna Kurup (AIR 1971 Ker 211). In this case there was uncertainty of law and the appeal was filed in wrong Court, on bonafide advice of Counsel, and Kerala High Court speaking through Justice V. K. Krishna Iyer observed:- "I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by Courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and layman, as litigants are, may legitimately lean on expert Counsel in legal as in other Departments, without probing the professional competence of the advice. The Court must of course, see whether, in 9 such cases there is any taint of malafides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers". and the Apex Court again through Justice Krishna Iyer observed:- “The law is settled that mistake of Counsel may in certain circumstances be taken into account in condoning the delay although there is no general preposition that a mistake of Counsel by itself is always a sufficient ground. It is always a question whether the mistake was bonafide or as merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. 12. In Rafiq and another V/s. Munshilal and anr (AIR 1981 SC 1400) the appellant had not approached before the Appellate Court and the appeal was dismissed in the absence of his Counsel and the Apex Court held that the appellant ought not to suffer for his Counsel's inaction, omission or misdemeanor. 13. Admittedly, when the first application for compounding was 10 made before the Learned J.M.F.C, no payment was made by the petitioner or atleast the petitioner had not obtained any receipt of payment. The receipt of payment of Rs.2,85,000/- came to be obtained by the petitioner on or about 2.4.08 after the application for compounding was dismissed on 17.10.07. Shri Menezes, the Learned Counsel of the petitioner may be right in contending that the petitioner had filed a revision before the Court of Sessions on a wrong advice given to the petitioner. The petitioner has not even mentioned the name of the advocate who was responsible for giving such wrong advice. But according to Shri Menezes, it was one Advocate Shri M. Rodrigues whose name appears in the cause title of the criminal revision application filed before the Court of Sessions. It may be so but nothing prevented the petitioner from pleading or mentioning of this fact as it was done in the cases referred hereinabove. 14. However, the petitioner does not seek any delay to be condoned from 17.10.07 to 26.6.08. If the petitioner had done that, the petitioner's prayer could have been conceded for the asking. The petitioner, is seeking condonation from 26.6.08, and, in my view, Shri. 11 Kamat is right in submitting that the petitioner has not at all explained the delay from 26.6.08 till 5.3.09 i.e. the date of filing of the present application. There is no averment in the application that the petitioner on or after 26.6.08 was again advised by his Counsel that the petitioner having made the payment that matter stood settled between the parties. No advocate worth his salt would make such a statement and no prudent client would have accepted such a statement, when not only two but four orders had gone against him. The petitioner is a businessman and there were many cases filed against him. 15. Counsel on behalf of the petitioner brings to my notice the averments of para 10 and para 11 of the affidavit filed by the petitioner in support of the application. There is only a general statement. As stated by the petitioner, the petitioner might have been labouring under a bonafide belief that his advocate was advising him rightly saying that the matter was settled since the entire amount was paid by the petitioner, but that was prior to 26.6.08. The petitioner as a prudent businessman ought to have known as to why his revision petition was dismissed by the Learned Sessions Judge. Infact the petitioner has not shown any 12 cause, which can be accepted as sufficient, to condone the delay from 26.6.08 to 5.3.09. In case a non bailable warrant was issued to the petitioner, the petitioner ought to have mentioned the date as to when the said non bailable warrant came for execution against him. Para 11 is vague in that respect. Similarly, the petitioner has not mentioned the date when the petitioner approached another advocate in February, 2009. The avernments of paras 10, 11 and 12 have been designedly kept vague as a device to cover up the latches on the part of the petitioner. 16. It is now well settled that while condoning delay what matters is not the length of delay but acceptability of the explanation. That a party has a good case on merits to succeed is no consideration to condone the delay. 17. There is no doubt that the expression "sufficient cause" has always been construed liberally but it ought not to be construed too liberally. A balance has got to be maintained. A cause which is not good or bonafide cannot be a sufficient cause to condone the delay. The Court is not required to accept anything and everything which is stated on 13 behalf of a party to explain the default. If that is done such party will have the last laugh at the cost of his adversary. Delay cannot be condoned on sympathetic grounds unless delay is properly, satisfactorily and convincingly explained {See 2007 (2) SCC 322}. Law of Limitation does harshly affect parties but it has to be so applied with all its rigour when the statute so prescribes and a Court cannot extend the period of limitation on equitable grounds (See P. K. Ramachandran V/s. State of Kerala and another {(1997) 7 SCC 556}. 18. The petitioner has remained inactive and indolent after order dated 26.6.08 and has put himself in this predicament. Wrong advice is used as a ruse to explain delay. 19. What can happen even if the delay is condoned? Nothing. The Judgment/order dated 16.7.07 upholding the order dated 16.1.06 of conviction and sentence has attained finality as it has not been challenged till date. The revision ought to have been directed against those orders. The orders dated 17.10.07 and 26.6.08 have also not been challenged and they are in accordance with the law laid down by the Apex Court and the 14 view held by this Court in Venus Steel Products (2005 ALL MR (Cr.) 2753 wherein it was stated as follows:- “The applicant's application has been styled as an application for restoration. The concept of restoration is unknown to the Code of Criminal Procedure, 1973. The only remedy which might have been available to the applicant under the Code was either of recalling the order of dismissal or reviewing the same. As already stated, the Order dated 21.4.04 is a final order disposing of the criminal revision application filed by the applicant. The same cannot be recalled or reviewed in view of the specific bar created by Section 362 of the Code and as held by the Hon'ble Supreme Court in the judgments referred to hereinabove”. The only prayer in the revision is for compounding. That cannot be granted because the respondent is now unwilling to compound the offence, compounding being a purely voluntary act. 20. In view of the above, I am not at all satisfied with the explanation given by the petitioner for condoning the delay from 26.6.08 to 5.3.09. Application, therefore, is hereby dismissed. 15 21. Counsel on behalf of the petitioner seeks stay of the operation of this order to enable him to approach the Apex Court. Operation of the order is stayed for three weeks in the interest of justice. N. A. BRITTO, J. oc.