NARAYANDAS GULABCHAND AGRAWAL Vs. RAKESH KUMAR NEMKUMAR PORWAL

JUDGEMENT

(1.) - Heard the learned counsel for the parties on the application for condonation of delay in filing the appeal on 31. 8. 1994 against the order of acquittal dated 21. 9. 1991 passed by the Chief Judicial Magistrate, Nagpur, in Criminal Complaint no. 518/1990. Mr. VV Bhangde, the learned counsel for the applicant, submits that the applicant filed the Criminal Complaint No. 518 of 1990 under Section 138 of negotiable Instruments Act, 1881 against the respondent No. 1 on 20. 2. 1990 and in the said complaint summons were served on the accused. When the case was fixed for 21. 9. 1991 and at the time it was called, the applicant had gone to inform his counsel but the Chief Judicial Magistrate. Nagpur, in the absence of the complainant/applicant and his counsel dismissed the complaint since neither of them were present at the time the case was called. Mr. Bhangde further submits that on that very day the complainant moved an application for restoration of the complaint which was allowed by the chief Judicial Magistrate, Nagpur, on that very day and the proceedings in the complaint continued and the accused/non-applicant No. 1 participated in the proceedings. According to Mr. Bhangde, on 19. 6. 1992 the accused/non-applicant No. 1 moved an application before the trial Court that the complaint which was dismissed on 21. 9. 1991 by the Court for want of prosecution could not have been restored and the further proceedings are non est and, therefore, the proceedings should be dropped. That application which was filed by the non-applicant-accused No. 1 on 19. 6. 1992 was contested by the applicant on various grounds and the trial Court rejected the said applicant filed by the non-applicant No. I/accused on 21. 7. 1992. Mr. Bhangde further submits that aggrieved by the order dated 21. 7. 1992, the accused/non-applicant No. 1 herein filed criminal revision before the 3rd Additional Sessions Judge, Nagpur, on 26. 8. 1992 and the said criminal revision application was allowed by the 3rd Additional Sessions Judge, nagpur, on 23. 6. 1994 and at that time it occurred to the complainant that he ought to have filed an appeal against the order of acquittal dated 21. 9. 1991 and according to mr. Bhangde, thereafter the present appeal has been filed on 31. 8. 1994. The leaned counsel for the applicant thus submits that the applicant was prosecuting his remedy in good faith and bona fide and, therefore, delay in filing the present appeal against the order of acquittal should be condoned and appeal should be heard on merits.

(2.) OPPOSING the submissions made by Mr. Bhangde, on the other hand, the the learned senior counsel appearing on behalf of the non-applicant No. 1/accused submitted that despite the settled position of law, the complainant contested the application filed by the accused on 19. 6. 1992 on untenable grounds and, therefore, it cannot be said that the complainant was prosecuting the remedies in good faith. Mr. Sen, the learned senior counsel for the non- applicant No. 1 submits that the complainant did not act in good faith and only to harass the accused/non-applicant No. 1, this appeal against the order of acquittal has been filed almost after 33 months. Mr. Sen, the learned senior counsel also contended that the cause shown by the applicant is not sufficient cause, and, therefore, the application deserves to be dismissed. In support of his contention, the learned senior counsel relied upon the decision of the Apex Court in ravindra Nath v. Sovakami, AIR 1972 SC 730. The learned senior counsel appearing on behalf of the non-applicant No. 1 also brought to my notice that the complainant has already filed civil suit for recovery of the disputed amount in the year 1992 and the said civil suit is registered as Special Civil Suit No. 268/1992 and the same is pending in the Court of 3rd Jt. Civil Judge, Senior Division, Nagpur, and the next date fixed in the matter is 14. 9. 1995.

(3.) THE facts are not in dispute. It is an admitted case that the complaint was filed by the applicant under Section 138 of the Negotiable Instruments Act, 1881 against the non-applicant No. 1/respondent on 20. 3. 1990 and the summons were issued to the non-applicant No. 1/accused. The matter was fixed on 21. 9. 1991 and when it was called by the Chief Judicial Magistrate, neither the complainant nor his counsel appeared and, therefore, the Chief Judicial Magistrate by the order dated 21. 9. 1991 dismissed the complaint for want of prosecution and discharge the accused. The complainant made an application for restoration of the complaint on 21. 9. 1991 though it was not maintainable in law and still the trial Court allowed the said application on that very day and proceeded with the complaint. As a matter of law after the order was passed on 21. 9. 1991 dismissing the complaint for want of prosecution and accused was discharged, the Chief Judicial Magistrate, Nagpur became functus officio in the matter but on the misconceived application filed by the complainant, the complaint was restored. Though the accused on restoration of the complaint appeared before the Court on some dates of hearing and it was found by the accused/non-applicant No. 1 that the proceedings before the Chief Judicial Magistrate, Nagpur pursuant to the complaint was non est. Accordingly an application was made for dropping the proceedings since the said proceedings were void and non est. This application filed by the non-applicant No. 1 was rejected by the Chief Judicial Magistrate on 21. 7. 1992. Obviously the order passed by the trial Court on 21. 7. 1992 was erroneous and when the accused/non-applicant No. 1 challenged the said order in criminal revision, the revisional Court set aside the erroneous order passed by the Chief Judicial Magistrate and set right the illegality committed by the Chief Judicial Magistrate by passing the order dated 23. 6. 1994. The wisdom dawned on the complainant then and this criminal appeal against order of acquittal has been preferred by him before this Court on 31. 8. 1994 along with an application for condonation of delay. The question is whether in view of the aforesaid facts, can it be said that the complainant acted bona fide and in good faith firstly in making the application on 21. 9. 1991 for restoration of complaint and secondly in opposing the application filed by the accused/applicant on 19. 6. 1992 and the remedy prosecuted by the complainant was bona fide and in good faith and the delay for the period from 21. 9. 1991 to 18. 6. 1992 and then 19. 6. 1992 to 31. 8. 1994 deserves to be condoned or not.