In a criminal application for condonation of delay seeking leave to prefer an appeal against dismissal of a cheque dishonour complaint, the Single Judge held that the delay was inordinate and unexplained, rejecting the application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
(15)APPLNNo.642018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.64 OF 2018
Dattatraya Shripati Atigare ... Applicant V/s. Chairman, Chaitayan Earth Movers Pvt. Ltd. ... Respondents
Mr.Sandeep S. Koregave, Advocate for the Applicant.
None for the Respondent No.1.
Mr.S.V.Gavand, APP for the Respondent/State.
CORAM : A.M.BADAR J.
DATED : 30th OCTOBER 2018.
P.C. :
1 This is an application for condonation of delay of six years and 205 days in preferring an application for leave to appeal. By filing the application for leave to appeal what is sought to be challenged is dismissal of the complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 for want of prosecution by resorting to the provisions of Section 256 of the Code of Criminal Procedure.
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Gaikwad RD
(15)APPLNNo.642018
2 None for the respondent No.1 despite service.
3 Heard the learned Counsel appearing for the applicant/original complainant. He argued that the complaint was filed alleging the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 on 27/08/2007. Order of issuing process was passed on the very same day. It was challenged by the original accused before the Sessions Court and stay to the warrant was obtained. In between, 26/04/2011 that complaint was dismissed for want of prosecution. In submission of the learned Counsel for the applicant, instead of challenging this Order dated 26/04/2011 before this Court, the Advocate appointed by the applicant had preferred an application for restoration of the complaint along with the application for condonation of delay in filing the restoration application. The said application for condonation of delay came to be rejected by the learned Judicial Magistrate First Class on 26/09/2016. Thereafter, the applicant approached his Counsel and his Counsel thought that the matter needs to be taken up to the Sessions Court for challenging the Order of the learned Judicial Magistrate First Class passed on 26/09/2016. However, ultimately it was revealed that what is required to be challenged is the Order dated 26/04/2011 and that is how the application for leave to appeal is filed along with the instant application.
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Gaikwad RD
(15)APPLNNo.642018
4 I have considered the submissions so advanced. The delay in preferring the application for leave to appeal is an inordinate delay. The same is not explained. The reason given is that of filing an application for condonation of delay as well as application for restoration of the complaint before the very same trial Court. Even if this explanation is accepted then also it is seen that the said application for condonation of delay was rejected on 26/09/2016. Thereafter, the applicant has preferred not to take any step in the matter for a period of more than one year. Then he filed instant application along with the application for leave to appeal in the month of January 2018. Thus, delay of about fifteen months is totally unexplained by the applicant. The conduct of the applicant, as such, cannot be termed as bona fide. The reason, as stated, cannot be construed as a sufficient cause. Hence, the Order:
ORDER
The application is rejected.
(A.M.BADAR J.)
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Gaikwad RD
3 issues framed by the court
Whether the inordinate delay of six years and 205 days in filing an application for leave to appeal constitutes a sufficient cause for condonation of delay.
Whether the applicant's conduct in filing restoration applications and then remaining inactive for over a year before this application amounts to bona fide effort.
Whether the order dismissing the complaint for want of prosecution under Section 256 CrPC should be allowed to be set aside after such delay.
2 provisions across 2 enactments
Dattatraya Shripati Atigare
Chairman, Chaitayan Earth Movers Pvt. Ltd.
A.M.Badar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
