BHARATKUMAR HASMUKHLAL PATHAK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD the learned counsel for the applicant who has practically submitted his submissions on the line of averments made in the application. The present application has been filed for condoning delay of 422 days (it should be 322 days) in preferring the appeal against the impugned order dated 17.12.2011 passed by the learned Chief Judicial Magistrate, Rajpipla in Criminal Case No.2790 of 2009 under section 138 of the Negotiable Instruments Act, 1881 .

(2.) THE chronology of events for explaining the delay is mentioned in paragraph No. 2 of the application. According to the averments, after the impugned order was passed the same was not conveyed to the applicant immediately by the Advocate appearing on behalf of the applicant before the Honble Magistrate, Rajpipla for quite long time. It is stated that the applicant came to know about the order on 11.8.2012 when the complainant met the Advocate at Rajpipla. According to him, thereafter in consultation with his family members, he has decided to take opinion of the Advocate for filing the appeal against the aforesaid order. That the applicant has applied for certified copy on 24.8.2012 and the said copy was ready on 28.8.2012 and the Advocate has taken the said copy. After getting all the documents due to some family problems, he could not approach this Court. Thus there is a delay of 322 days caused in filing the Appeal.

(3.) LEARNED Advocate for the respondent No.2 has vehemently contested the application for condoning the delay. He has submitted that the application is totally misconceived and the same is required to be rejected as no reason much less any sufficient ground has been put forward by the applicant for condoning the delay. The learned Advocate submitted that all the averments made in the application are blatant lie on the part of the applicant. He submitted that in Criminal Case No. 747/2002 before the learned Addl.Chief Judicial Magistrate at Rajpipla the present applicant has deposed as a witness on 29.11.2011. Therefore, it cannot be said that he has not met his Advocate and was not informed about passing of the order. That right from December, 2011, for two years no steps were taken by the applicant to serve the accused and therefore, the learned Magistrate has passed the order acquitting the accused under section 256 of the Code of Criminal Procedure. In support of his submissions, the learned Advocate for the respondent has relied upon a decision in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, 2012 5 SCC 157] He, finally submitted that the application is required to be dismissed.