Narayandas S/O Gulabchand … vs Rakesh Kumar S/O Nem Kumar Porwal on 17 August, 1995
Equivalent citations: 1996 CriLJ 29, 1996 (2) MhLj 463
Bench: R Lodha
Introduction:
The case at hand involves an application for condonation of delay in filing an appeal against an order of acquittal. The complainant, represented by Mr. V. V. Bhangde, argues that the delay should be condoned as he acted in good faith and diligently pursued his remedies. On the other hand, the senior counsel for the accused, Mr. Sen, contends that the complainant’s actions were not bona fide and the delay should not be condoned.
Factual Background:
The complainant filed a criminal complaint under Section 138 of the Negotiable Instrument Act, 1881 against the respondent on 20-3-1990. However, on 21-9-1991, neither the complainant nor his counsel appeared in court when the case was called, resulting in the complaint being dismissed for want of prosecution. The complainant subsequently applied for the restoration of the complaint on the same day, and surprisingly, the trial court allowed the application, leading to the continuation of proceedings. The accused participated in the proceedings, but later filed an application claiming that the restored complaint was void. The trial court rejected this application on 21-7-1992. The accused then filed a criminal revision, which was allowed on 23-6-1994. Finally, on 31-8-1994, the complainant filed an appeal against the order of acquittal.
Complainant’s Contentions:
Good Faith and Diligence: The complainant, represented by Mr. V. V. Bhangde, argues that he acted in good faith and diligently pursued his remedies throughout the process. He contends that the delay in filing the appeal against the order of acquittal should be condoned.
Restoration of Complaint: The complainant asserts that he promptly applied for the restoration of the complaint on the same day it was dismissed for want of prosecution. He argues that the trial court’s decision to allow the restoration of the complaint indicates that he was serious about pursuing the case against the accused.
Contesting the Accused’s Application: The complainant points out that he actively contested the application filed by the accused, seeking to declare the restored complaint as void. He argues that his opposition to the accused’s application demonstrates his bona fide intentions and commitment to pursuing the case.
Accused’s Contentions:
Lack of Bona Fide Actions: The senior counsel for the accused, Mr. Sen, argues that the complainant’s actions were not bona fide and were instead intended to harass the accused. He contends that the delay in filing the appeal should not be condoned.
Invalid Restoration of Complaint: The accused asserts that the restoration of the complaint after the complainant’s non-appearance was not provided for under the Criminal Procedure Code. He argues that the trial court’s decision to allow the restoration was erroneous and invalid.
Delayed Filing of Appeal: The accused highlights the substantial delay between the revisional court’s decision and the complainant’s filing of the appeal against the order of acquittal. He argues that this delay further demonstrates the lack of bona fide intentions on the part of the complainant.
Legal Analysis:
The pivotal question before the court is whether the complainant acted bona fide and in good faith throughout the process, justifying the condonation of the substantial delay. The court must assess whether the complainant pursued his remedies diligently or simply intended to harass the accused.
The court first clarifies that the restoration of a dismissed complaint after the complainant’s non-appearance is not provided for under the Criminal Procedure Code. Citing the Supreme Court’s decision in Maj Genl. A. S. Gauraya v. S. N. Thakur, the court states that dismissal of a complaint for non-appearance of the complainant in a warrant case results in the accused’s discharge, while in a summons case, it results in acquittal. Therefore, the restoration of the complaint by the trial court after the dismissal order was not valid.
The court further notes that the complainant contested the application filed by the accused on 19-6-1992, arguing against the dropping of proceedings. Despite the settled legal position and the accused’s claim that the proceedings were void, the complainant opposed the application on various grounds. It was only after the revisional court set aside the erroneous order of the trial court that the complainant filed the present appeal.
The court concludes that the complainant’s conduct was not bona fide and in good faith. The complainant took chances by contesting the accused’s application on multiple grounds and only filed the appeal after the revisional court’s decision. Additionally, the complainant had already filed a civil suit for recovery of the disputed amount, which was still pending in another court.
Conclusion:
Based on the analysis, the court finds that the complainant failed to demonstrate sufficient cause for the delay in filing the appeal against the order of acquittal. The court emphasizes that the complainant’s actions were not in good faith and condoning the delay would be unjustified. Consequently, the application for condonation of delay is dismissed, and the appeal against the order of acquittal is rejected.
written by Abhinav bhardwaj intern under legal vidhiya.
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