SAMIR PURKAIT Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE learned Judicial Magistrate, 2nd Court, Diamond Harbour in Case no. C-55 of 2003 corresponding to trial No. 79 of 2003 by his judgment and order dated 19th May, 2006 convicted the present petitioner under Section 138 of Negotiable Instruments Act and sentenced him to pay a fine of Rs. 3 lacs in default to suffer simple imprisonment of six months. The petitioner preferred an appeal on 9th August, 2006 before the learned Additional Sessions judge, Diamond Harbour being Criminal Appeal No. 2 of 2006 under Section 374 of the Code of Criminal Procedure. Since the appeal was beyond time an application under Section 5 of the Limitation Act was filed on the same day and the learned Judge directed issuance of notice upon the complainant and others and fixed 8th of September, 2006 for service return of notice. On 8th september, 2006, the appellant was absent without any step, while the complainant was present and the learned Judge observed that as 8th of september, 2006 was fixed for the hearing of the petition under Section 5 of the Limitation Act in the matter of condonation of delay and the appellant did not turn up nor did he take any steps, the application under Section 5 of the limitation Act stood dismissed for non-prosecution. Consequently, the criminal appeal could not be admitted and was dismissed. On the same day i. e. , 8th september, 2006 when the application under Section 5 of the Limitation Act was dismissed for non-prosecution on account of non-appearance of the appellant, the appellant filed a petition for reopening the matter. The learned judge by his order dated 11th September, 2006 rejected that petition. Then on 25th of September, 2006 the appellant filed another memo of appeal under section 374 of the Cr. P. C, being criminal appeal No. 7 of 2006 and exactly an identical petition under Section 5 of the Limitation Act to that so-called second appeal praying for condonation of delay was taken out but the learned Judge in the Court below dismissed the second application under Section 5. of the limitation Act holding that the petitioner could not explain the delay in preferring the said second appeal within time. It is this order dated 29th February, 2008 passed in criminal appeal No. 7 of 2006 which is the subject matter of challenge in this application under Section 482 of the Code of Criminal Procedure.

(2.) IT has been submitted by Mr. Jaharlal Dey appearing with Mr. S. Bapuli, learned Advocate for the petitioner that the first appeal was preferred on 9th August, 2006 along with an application under Section 5 of the Limitation act and the ground of delay was explained properly to the effect that between 4th June, 2006 and 6th August, 2006 the appellant/petitioner had become seriously ill and the Court was also closed for summer vacation on and from 20th May, 2006 as a result of which he could not contact with his lawyer to prefer the appeal. Further, his lawyer took two days time for drafting the petition. Whether the grounds were convincing or not, these were the grounds averred in the application under Section 5 of the Limitation Act. Now the said application under Section 5 of the Limitation Act stood virtually dismissed for default because on 8th September, 2006 the appellant did not turn up to pursue his application which is why he was advised by his lawyer to file a second memo of appeal along with a second application for condonation of delay under Section 5 of the Limitation Act which was filed on 25th of September, 2006, but meanwhile, there was also an attempt to revive the original first application under Section 5 of the Limitation Act which accompanied the first memo of appeal-but that application for re-consideration of the order for dismissal of the petition for non-prosecution stood also rejected. Mr. Dey submits that the learned Court failed to appreciate that because of unavoidable circumstances the appeal could not be preferred in time. It is submitted that the learned Judge's observation in the order dated 29th February, 2008 which was passed in connection with the second memo of appeal to the effect that no medical certificate was filed is erroneous because medical certificate was filed on 9th of August, 2006 when the first memo of appeal and the first application under section 5 of the Limitation Act were filed.

(3.) MR. S. Sen, learned Advocate appearing for the O. P. ,/complainant submitted that the grounds were not genuine and the second application under section 5 of the Limitation Act is not maintainable because there cannot be tender of more than one appeal and more than one Section 5 application in identical languages after the first one was rejected either rightly or wrongly. Therefore, it is the submission of Mr. Sen that the second application under section 5 of the Limitation Act could not be technically filed and further more, so far as the merit of the prayer for condonation of delay is concerned, there was, in fact, no genuine ground because the petitioner obtained certified copy of the order of the learned Magistrate on 20th May, 2006 itself and the ground of illness could not be ventilated successfully in absence of any medical document. Accordingly, it is submitted that this present application under section 482 of Cr. P. C. should also stand rejected.