At, High Court of Himachal Pradesh
By, THE HONOURABLE MR. JUSTICE KULDIP SINGH
For the Appearing Parties: B.R. Kashyap, Hemant Vaid, Advocates.
KULDIP SINGH, J.
(1.) This is an application under Section 5 of the Limitation Act for condonation of delay. The complaint filed by petitioner under Section 138 of the Negotiable Instrument Act, 1881 against respondent has been dismissed by learned Chief Judicial Magistrate, Shimla on 17.9.2008. The petitioner has filed an application under Section 378(4) Cr.P.C. for seeking leave to file appeal against judgment dated 17.9.2008 passed by learned Chief Judicial Magistrate in Case No.66/3 of 05/06. The leave to appeal application is time barred; therefore, application under Section 5 of the Limitation Act 1963 has been filed for condonation of delay.
(2.) The petitioner in the application for condonation of delay has submitted that case was decided on 17.9.2008, copy was applied on 23.9.2008 and was received on 25.10.2008. The copy of the impugned judgment got mixed with other case files in the office and could not be traced out. The petitioner had turned up on 25.12.2008. Thereafter due to personal problem of the counsel for the petitioner the case could not be prepared due to sudden operation of some family member on 24.12.2008. In these circumstances, appeal could be filed a bit late after receipt of copy of judgment dated 17.9.2008. The delay in filing is neither intentional nor willful and therefore, prayer has been made for condonation of delay. In the application, it has been stated that delay is of 25 days. The application is supported by an affidavit of the counsel who has actually filed the appeal, leave to appeal application as well as condonation of delay application.
(3.) The application has been opposed by filing reply in which preliminary objections have been taken that no appeal can be filed unless an application for special leave to appeal is filed within 60 days of the date of order of acquittal and leave is granted. The present application has been filed by the petitioner in the appeal preferred by him under Section 378 of the Code, but no appeal is maintainable unless the leave to appeal is granted by the Court. The application has been filed for condonation of delay in filing the appeal; therefore, application is liable to be dismissed. The delay in filing of the application under Section 378 (4) of the Code cannot be condoned. The Section 5 of the Limitation Act is not applicable. On merits, it has been submitted that as per the allegations in the application, the petitioner had contacted the advocate on 25.12.2008 and by that time the limitation for filing the application was already over. It has been denied that delay was due to the problem of the advocate. The petitioner has prayed for condonation of delay of 25 days only whereas the delay is of longer period. The respondent ultimately has prayed for dismissal of the application.
(4.) I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioner that the petitioner has filed leave to appeal application, condonation of delay application and appeal. The substance of the application under Section 5 of the Limitation Act is to condone the delay. The reference of condonation of delay in filing the appeal in the condonation of delay application in this context cannot be over emphasized. The substance of the application is to be seen. The learned counsel for the petitioner has taken on himself substantial part of delay in not filing the leave to appeal application in time due to hospitalization of some family member. The learned counsel for the respondent has reiterated the stand taken by respondent in the reply.
(5.) The Section 378(4) of the Code provides that complainant is required to take special leave to appeal from the High Court for filing appeal against acquittal. Sub section 5 of Section 378 provides limitation of 60 days for filing application under sub section 4 of Section 378 from the date of order of acquittal. The respondent was acquitted on 17.9.2008. The application for obtaining the certified copy of the order dated 17.9.2008 was applied on 23.9.2008, it was attested on 23.10.2008 and was delivered on 23.10.2008. As per office delay in filing is 52 days. The learned counsel for the petitioner has filed an affidavit in support of the condonation of delay application. There is no reason to disbelieve the counsel. On the basis of material on record, it can be safely inferred that condonation of delay application has been filed in support of leave to appeal application and not in support of appeal, even though in the condonation of delay application prayer has been made for condonation of delay in filing the appeal, this appears to be an inadvertent mistake. The substance of the application is to be seen.
(6.) The learned counsel for the respondent has submitted that Section 5 of the Limitation Act 1963 is not applicable to leave to appeal application filed under sub sections 4,5 of Section 378 of the code. It has been submitted that in Smt. Krishna Devi vs. Dina Ram Latest HLJ 2008(HP) 959 it has been held that Section 5 of the Limitation Act would not apply in application seeking leave to file appeal under Section 378(4) of the Code. In Smt. Krishna Devi above Kaushalya Rani vs. Gopal Singh, AIR 1964 SC 60 was noticed. In Mangu Ram vs. Municipal Corporation of Delhi AIR 1976 SC 105 the Supreme Court has considered the relevant provisions of Indian Limitation Act, 1908 and Limitation Act 1963 and held that in case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in subsection (4) of Section 417, the application would not be barred and despite the expiration of the time limit of
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sixty days, the High court would have the power to entertain it. Mangu Ram (supra) was not brought to the notice of the Court in Krishna Devi supra. In Mangu Ram, Kaushalya Rani was noticed therefore Krishna Devi (supra) is of no help to respondent. This Court under Section 5 of the Limitation Act, 1963 has power to condone the delay on an application filed for condonation of delay in filing the leave to appeal application under sub sections (4)(5) of Section 378 of the Code. (7.) The petitioner has shown sufficient cause for condonation of delay in filing the leave to appeal application. Accordingly, application is allowed, delay condoned.