SUBRAMANIA ACHARY Vs. SATHYABAMA

JUDGEMENT

(1.) A delay of 1,347 days in filing the revision against the judgment rendered in Criminal Appeal No. 38/89 by the Principal Sessions Judge, Ramnad at Madurai now at Sivaganga before this Court is sought to be condoned under S. 5 of the Limitation Act by the petitioner by name Subramania Achari, who is the resident of Door No. 53/14, Periya Kadai Veethi, Aranthangi, Pudukottai District.

(2.) The brief facts which prompted to seek the above relief are stated as follows :- Being a jeweller by profession, on 30-7-1984 the Inspector of Police, Devakottai, manoeuvred him to part with thirty two grams of gold bar pursuant to the confession given by one accused, by name Raheem, as a stolen jewel, despite his resistance. Though he has not committed any offence, however, he was compelled by the Inspector of Police at the behest of arrest and hence he had obliged to give thirty two grams of gold ingot out of 198-100 grams. This is followed by a complaint given by him pointing out the illegal seizure on 1-8-1984 to the Judicial First Class Magistrate, Devakottai. The main case of theft ended since the accused pleaded guilty. Therefore, he filed a petition in Crl. M.P. No. 1904 of 1984 before the trial court and after full enquiry and examining witnesses, the learned Judicial First Class Magistrate has held that the said jewels belonged to him and that therefore, no evidence was made available against the petitioner. But however, the complainant preferred an appeal before the Principal Sessions Judge, Ramnad, in C.A. 38/89 and the grievances of the complainant was accepted and during the pendency of the same, the petitioner has claimed that he has engaged a lawyer by name Mr. Sibbakath. As he had engaged a lawyer to contest the abovesaid appeal on his behalf and on his counsel's assurance that he need not be present and informed the petitioner that he would write letters about the hearings of the appeal and so, he kept quiet expecting information from his lawyer. As there was no communication at all, for a considerable long time, he went to Madurai and enquired and he came to know that the appeal had not yet been posted in the list. In the similar fashion he get reply on number of occasions from his lawyer. While so, during September 1991, when he came to Madurai, he was informed that the appeal was disposed of long back and when he questioned his counsel as to why he did not inform him, he did not give any valid reply and when he asked to return the case papers to him, he said that he had applied for the copy and he would return the same as soon as he get it from the court along with the case bundle. Likewise several times, though he made attempts he could not get it, which was followed by him to lodge a complaint to the Bar Council of Tamil Nadu and in the said petition, he narrated about the conduct of his counsel on 10-1-1992. Then he has furnished all the relevant papers as the Bar Council of Tamilnadu required him to produce, for the purpose of taking further action, as per letter dated 31-1-1992 and 5-2-1992. While that process was going on, he came to know on 10-5-1993 that his counsel Mr. Sabbakath died unfortunately. When he visited several times Madurai and took strenuous efforts to get the case bundle from the clerk of his erstwhile advocate and in the meanwhile, District Court has been shifted to Sivaganga from Madurai. After having taken strenuous efforts with the help of the clerk of the above counsel, he was able to get the case bundle only on 18-11-1993. Then he followed by filing a revision in this court after getting the necessary certified copies of the order and documents. Thus he was able to get the copy of the judgment on 3-9-1993 along with the case bundle only on 18-11-1993 and on perusal he was advised that he is having good ground to be agitated during revision. But it was pointed out to make such a revision that a delay of 1,347 days had happened. Therefore, he was constrained to file this application under S. 5 of the Limitation Act. The delay in filing this revision is neither wilful nor wanton, but due to the reasons beyond his control and due to the carelessness and recklesseness of his counsel, the delay had happened. The value of the gold which was parted by him is about Rs. 15,000.00 and more. Therefore, the delay has to be condoned.

(3.) The complainant/successful appellant before the lower appellate court filed a counter-affidavit wherein she has contended several other grounds pertaining to the disposal of the case before the trial court and the appeal ended in her favour and further she has stated that the delay of more than 1300 days sought to be condoned by the petitioner is wanton and deliberate and it cannot be condoned for the reason that the petitioner has not proved each and every day's delay and that therefore, the delay cannot be condoned.