KRISHNA DEVI Vs. DINA RAM

JUDGEMENT

(1.) THIS is an application, under section 5 of the Limitation Act read with section 482 of the Code of Criminal Procedure (for short, the Code) for condonation of delay in filing an application seeking leave to file an appeal under sub-section (4) of section 378 of the Code.

(2.) THE applicant had filed complaint No. 144-1/2003, under Sections 494, 497 and 406, IPC in the Court of learned Sub-Divisional judicial Magistrate, Chachyot at gohar. The respondent was charged for commission of offences under Sections 494 and 406, IPC, but acquitted by the learned Sub-Divisional judicial Magistrate on 12-9-2007. In the application, it has been stated that certified copy of the judgement was applied on 1-11-2007, it was prepared on 15-11-2007 and as per certified copy of the judgement placed on record, it was delivered on 15-11 -2007. It has been submitted that delay in filing the application seeking leave to file an appeal is neither intentional nor wilful.

(3.) THE application has been opposed on the ground that under sub-section (5) of section 378 of the Code, maximum period within which leave to appeal can be filed in a complaint case when complainant is not a public servant is 60 days to be computed from the date of order. In the present case, admittedly the judgement was announced on 12-9-2007 and application seeking leave to file an appeal against the judgement dated 12-9-2007 has been filed on 20-12-2007, i. e. more than 60 days after the Judgement dated 12-9-2007. It has been submitted that leave to file appeal application is time barred and delay cannot be condoned under section 5 of the Limitation Act. The learned counsel for the respondent has relied on kaushlya Rani v. Gopal Singh, AIR 1964 SC 260 : 1964 (1) Cri LJ 152 and has submitted that since leave to file appeal application has been filed more than sixty days from the date of judgement, therefore, leave application is not maintainable and it cannot be entertained. The learned counsel has submitted that it is admitted case that complainant in the present case was not a public servant.