KAMDHENU AUTO ENTERPRISE Vs. GAJENDRASINH GULAMSINH SOLANKI

JUDGEMENT

(1.) This application is filed seeking condonation of delay of 439 days caused in filing the appeal against the judgment and order dtd. 21/7/2018 passed below Exhibit 1 in Criminal Case No.628 of 2014 by the learned Metropolitan Magistrate, Special N.I. Court No.27, Ahmedabad. By the said judgment and order, the learned Magistrate has proceeded to record the order of acquittal by dismissing the complaint for default in exercise of powers conferred under Sec. 256 of the Code of Criminal Procedure.

(2.) It is the case of the applicant - original complainant that he became aware about the impugned order on 2/11/2019. It is contended by the applicant that though the original complainant was represented through his advocate, he was intimated by his lawyer that the talks of settlement were in progress for which his personal presence may not be required. He, therefore, bona fidely believed his advocate and did not remain present. As soon as he became aware about the impugned order, he applied for certified copy of the order, complaint etc. on 4/10/2019. It is further contended that Registry of the concerned Court took time in processing papers and certified copy was made available to the applicant on 6/12/2019. It is further contended that having received the copy, the applicant has sought opinion of the advocate and as per the advise, he has preferred present Appeal on 28/11/2019. The prescribed period has also lapsed and has resulted into delay of 439 days in filing the Appeal against the impugned order of acquittal dtd. 21/7/2018 passed in Criminal Case No.628 of 2014.

(3.) Aforesaid submissions of the original complainant have been strongly objected by the respondent accused by filing affidavit in reply. The respondent has invited attention of this Court to the impugned order, which has been passed by the learned Magistrate under Sec. 256 of the Code and much emphasized was made on the fact that the compliant relates to the year 2014 and in absence of any cooperation of the original complainant, the hearing of the trial was delayed. In such circumstances, it is submitted that the learned Magistrate has rightly exercised the powers under Sec. 256 of the Cr.P.C. The respondent has objected the submission that even otherwise there is no case on merits and delay caused in filing this appeal may not be entertained and is required to be rejected with cost. The learned advocate for the respondent has placed much emphasize on the fact that even assuming the averments made in the application to be true the order was passed on 21/7/2018 and the applicant claims to have knowledge of such fact only on 2/11/2019, which displays negligent and lethargic approach of the complainant. He therefore, submitted that the same cannot be treated as sufficient explanation for condonation of delay. Mr. Sunil Shah, learned advocate has relied upon the following authorities in support of his submissions: