SAJITHA Vs. STATE OF KERALA

JUDGEMENT

(1.) LEARNED Public Prosecutor takes notice for respondent.

(2.) PETITIONERS bailed out the accused in St No. 303 of 2006 of the Court of learned Chief Judicial Magistrate, Kollam on executing bond for Rs. 20,000/- each. That is the case registered for offence punishable under section 138 of Negotiable Instruments Act. The accused violated the bail conditions and thereon learned Chief Judicial Magistrate cancelled the bail. Proceeding was initiated against the petitioners, sureties. Though, the main case itself was settled between the accused and the complainant, learned Chief Judicial Magistrate as per order dated 30.6.2009 in M.C. No. 18 of 2009 ordered petitioners to pay penalty of Rs. 20,000/- each with a delay of 140 days, petitioners preferred an appeal before the learned Sessions Judge. They filed Crl. M.P. No. 3532 of 2009 to condone the delay, reason Stated being that first petitioner was pregnant during the relevant time, was advised to bed rest and could not take Steps to prefer an appeal and the second petitioner, also a lady was out of Kerala in connection with the job and hence the delay. Learned Sessions Judge was not impressed by the reason Stated for condonation of delay in that, first petitioner did not produce medical certificate to prove her pregnancy during the relevant time and reason Stated by second petitioner for her absence in the State cannot be accepted. Consequence was dismissal of Crl. M.P. No. 3532 of 2009 and resultantly the appeal as well. Order in Crl. M.P. No. 3532 of 2009 is under challenge in this revision. Learned Counsel submits that there was no reason to disbelieve the Statement of petitioners as to the reason for delay. Learned Counsel also submits that the fact of composition entered between the accused and the de facto complainant though, subsequent to initiation of proceedings in M.C. No. 13 of 2009 was not taken into account by the learned Sessions Judge.

(3.) THERE can be no dispute that there was delay of 140 days in preferring the appeal before learned Sessions Judge. Section 5 of the Limitation Act which applies to Criminal appeals also permits and authorises the Court to condone the delay when "sufficient cause" is shown. Courts have taken the view that the expression "sufficient cause" should receive a liberal interpretation taking into account the fact that the case has to be decided on merit and not on technicalities. This Court in John v. Mammukutty, 1985 KHC 15 = 1985 KLT 55 = 1984 KLJ 772 (though referring to a civil proceeding) Stated that the expression "sufficient cause" occurring in section 5 of the Limitation Act, 1963 must be liberally construed as to advance substantial justice unless the petitioner is guilty of contumacious conduct. The Same view was taken in Samuel Joseph v. Ramachandran Chellayyan 1991 KHC 80 1991 (1) KLT 218. The Supreme Court in Ram Nath Sao alias Nath Sahu and others v. Gobardhan Sao and others, 2002 KHC 1182 = AIR 2002 SC 1201 = 2002 (3) SCC 195, has also Stated that the expression "sufficient cause" should receive liberal construction so as to advance substantial justice when no negligence nor want of bona fide is imputable to the party. In Collector, Land Acquisition, Anantnag and another v. Mst. katiji and others, 1987 KHC 911 - AIR 1987 (2) SCC 107, the Supreme Court Stated the reasons for adopting such liberal approach when considering the application under section 5 of the Limitation Act. Reason Stated are : 1. Ordinarily a litigant does not Stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of Justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.