JAGMOHAN SOOD Vs. AKHIL MAHENDRU

JUDGEMENT

(1.) This is an application under Section 5 of the Limitation Act for condonation of delay. The complaint filed by petitioner under Section 138 of the Negotiable Instrument Act, 1881 against respondent has been dismissed by learned Chief Judicial Magistrate, Shimla on 17.9.2008. The petitioner has filed an application under Section 378(4) Cr.P.C. for seeking leave to file appeal against judgment dated 17.9.2008 passed by learned Chief Judicial Magistrate in Case No.66/3 of 05/06. The leave to appeal application is time barred; therefore, application under Section 5 of the Limitation Act 1963 has been filed for condonation of delay.

(2.) The petitioner in the application for condonation of delay has submitted that case was decided on 17.9.2008, copy was applied on 23.9.2008 and was received on 25.10.2008. The copy of the impugned judgment got mixed with other case files in the office and could not be traced out. The petitioner had turned up on 25.12.2008. Thereafter due to personal problem of the counsel for the petitioner the case could not be prepared due to sudden operation of some family member on 24.12.2008. In these circumstances, appeal could be filed a bit late after receipt of copy of judgment dated 17.9.2008. The delay in filing is neither intentional nor willful and therefore, prayer has been made for condonation of delay. In the application, it has been stated that delay is of 25 days. The application is supported by an affidavit of the counsel who has actually filed the appeal, leave to appeal application as well as condonation of delay application.

(3.) The application has been opposed by filing reply in which preliminary objections have been taken that no appeal can be filed unless an application for special leave to appeal is filed within 60 days of the date of order of acquittal and leave is granted. The present application has been filed by the petitioner in the appeal preferred by him under Section 378 of the Code, but no appeal is maintainable unless the leave to appeal is granted by the Court. The application has been filed for condonation of delay in filing the appeal; therefore, application is liable to be dismissed. The delay in filing of the application under Section 378 (4) of the Code cannot be condoned. The Section 5 of the Limitation Act is not applicable. On merits, it has been submitted that as per the allegations in the application, the petitioner had contacted the advocate on 25.12.2008 and by that time the limitation for filing the application was already over. It has been denied that delay was due to the problem of the advocate. The petitioner has prayed for condonation of delay of 25 days only whereas the delay is of longer period. The respondent ultimately has prayed for dismissal of the application.