Allowed

G.Rajagopal v. Subha Shree Finance Corporatio

Madras HC10 Mar 2014CRL RC/1136/2013

Case brief

AI extract

What is this about?

The High Court of Madras allowed criminal revisions against an order condoning a 98-day delay in filing appeals under Article 114 of the Limitation Act. The Court held that the affidavit supporting the delay due to partner's illness lacked material particulars and sufficient cause.

What did the court decide?

The order dated 4.9.2013 condoning delay of 98 days in filing appeals under Article 114 of Limitation Act is set aside.

G.Rajagopal Vs Subha Shree Finance Corporatio — Contract and Commercial Disputes | Madras HC (2014)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED: 10.03.2014

¶3

CORAM:

¶4

THE HON'BLE Ms.JUSTICE K.B.K.VASUKI

¶5

Crl.R.C.Nos.1136 and 1139 of 2013 and M.P.Nos.1 and 1 of 2013

¶6

G.Rajagopal .. Petitioner in both Crl.RCs Respondent/Respondent.

¶7

Vs.

¶8

Subha Shree Finance Corporation a registered Partnership Firm rep. by its Partner Ramachandran .. Respondent in both Crl.RCs Petitioner/Appellant.

¶9

Criminal Revisions are filed under Section 397 r/w 401 of the Code of Criminal Procedure, against the order dated 4.9.2013 made in Crl.M.P.Nos.4532 and 4533 of 2013 on the file of the Principal Sessions Judge, Vellore, Vellore District.

¶10

For Petitioner : Mr.D.Rajagopal For Respondent : Mr.P.Duraiswamy

¶11

COMMON ORDER

¶12

Both the criminal revisions are filed against the order made in the condone delay petitions.

¶13

2.Few facts, which are relevant for consideration herein are as follows: The respondent herein filed two private complaints against the petitioner herein for proceeding against him for the offence under Section 138 of the Negotiable Instruments Act. The private complaints ended in an order of acquittal of the accused, by judgment dated 31.5.2012. Challenging the same, the appeals were not filed within the time limit, but were filed with a delay of 98 days.

¶14

3.In the affidavits filed in support of the condone delay petitions, it is stated by the petitioner/appellant, who is one of the partners of the complainant firm that as he was bed ridden due to viral fever and Jaundice, he was unable to meet his counsel and file the appeals within the time limit and only after recovery, he met the counsel for filing the appeals against the accused and at that time, he was informed that mandatory period of filing the appeals expired and was advised to file the appeals with Section 5 Limitation Act

¶15

https://hcservices.ecourts.gov.in/hcservices/

¶16

Petitions. The same was seriously opposed by the respondent/accused by questioning the maintainability of the petitions filed under section 5 of the Limitation Act and also by questioning the truthfulness and genuineness of the averments raised in the affidavit regarding the health condition of the partner of the complainant firm.

¶17

4.The lower appellate court was inclined to condone the delay of 98 days in filing the appeals, mainly on the ground that the partner of the complainant firm was taking nativity medicine for his jaundice ailment and he was unable to produce any medical record to substantiate the same and in the interest of justice opportunity is to be extended to both the parties for fair trial. Aggrieved against the same, the respondent/accused filed the present revisions before this Court.

¶18

5.Heard the rival submissions made on both sides.

¶19

6.The respondent in both the private complaints and the petitioner in the present criminal revisions are one and the same. The appeals filed along with the delay, the condonation of which is the order sought to be revised herein, are filed against the order of acquittal of the petitioner herein for the offence under Section 138 of the Negotiable Instruments Act. Both the appeals were admittedly filed belatedly with a delay of 98 days.

¶20

7.Regarding the applicability of Section 5 Limitation Act petitions, which is for the first time raised before this Court, the same is applicable to any appeal or any application, other than an application under Code of Civil Procedure and the same may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Article 114 prescribes the period of limitation for preferring any appeal from an order of acquittal under sub section (1) or sub section (2) of Section 417 Cr.P.C and under sub section (3) of section 417 of the Code. When the time for filing the appeal is prescribed under the Limitation Act, the same can be extended by resorting to Section 5 of the Limitation Act and the applicability of the same cannot be hence legally questioned.

¶21

8.On facts, the affidavits filed in support of Section 5 Limitation Act petitions, are filed by one of the partners of the complainant/appellant firm. It is stated therein that he was bed ridden due to viral fever and jaundice and by the time he recovered from the same, mandatory period expired and he was advised to file the appeals along with the condone delay petitions. Though the lower appellate court condoned the delay, with an intention to give opportunity to both parties for fair disposal, the order was not based on any supporting material. The deponent of the affidavits, except stating that he was bed ridden for viral fever and Jaundice,

¶22

https://hcservices.ecourts.gov.in/hcservices/

¶23

not stated the period during which, he was bed ridden and the nature of the treatment. It is not stated therein that as to whether the nativity treatment was taken at Vellore or any other place. The particulars regarding duration of his illness and treatment are obviously lacking.

¶24

That apart, the complainant/appellant firm has more than one partners. Further, it is not the specific case of the deponent that he was only entrusted with the work of filing the appeals and not other partners and that the other parties was also not able to go and contact the advocate within the period of limitation. In the absence of any specific case regarding inability of other partner to approach their counsel, the delay in filing the appeals cannot be held to be duly explained. As rightly argued by the learned counsel for the petitioner herein, the delay is not supported by sufficient cause and reasons furnished in the supporting affidavits are bereft of material particulars and supporting documents. When the petitioner acquired some right by reason of order of acquittal of the lower court after full fledged trial, the same cannot be interfered without sufficient cause. The delay, having not been duly explained, the order condoning the same, cannot be sustained and the same is liable to be set aside.

¶25

10.In the result, the criminal revisions stand allowed by setting aside the order dated 4.9.2013 made in Crl.M.P.Nos.4532 and 4533 of 2013 on the file of the Principal Sessions Judge, Vellore, Vellore District. Consequently, connected Miscellaneous petitions are closed.

¶26

Sd/Asst. Registrar[cs.ii] Dt/-02/05/2014 /true copy/ Sub Asst. Registrar. rk To The Principal Sessions Judge, Vellore, Vellore District. Crl.R.C.Nos.1136 and 1139 of 2013 gri[co] gp/5.5.

¶27

https://hcservices.ecourts.gov.in/hcservices/

G.Rajagopal v. Subha Shree Finance Corporatio

Case brief

What is this about?

What did the court decide?

G.Rajagopal v. Subha Shree Finance Corporatio

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

S.Unnamalai Vs the Inspector of Police

T.John Bose Vs State Bank of India

K.Chinnappan Vs the District Adi Dravidar

K.Arunagiri Vs the Dist. Adhi Dravidar and

P.Shanmugam @ Shanmuga Vs State, Rep.by the Inspector of

M.Krishnan Vs the Dy Inspector Genl of Polic