V JANAKIRAMAYYA Vs. NIMMAGADDA BRAHMAYYA

JUDGEMENT

(1.) The first point raised in this petition is whether the Lower Appellate Court had jurisdiction to admit a criminal appeal which was out of time, that Court itself finding that the appellant had not shown convincing reasons for not presenting it in time. The provision of law applicable is Section 5 of the Indian Limitation Act, and under that provision the Court cannot extend the time unless it is satisfied that the appellant had sufficient cause for not preferring the appeal in time. The Lower Appellate Court was not so satisfied and therefore had no authority to extend the period and admit the appeal. Its proper procedure would have been to move this Court to exercise its powers of revision.

(2.) As to whether we should now interfere and reverse the acquittal, it is a question of whether there has been any gross miscarriage of justice which ought to be remedied. I cannot hold that there is any such question. The appellant had been convicted of theft for removing earth from a village site, said to belong to the Zamindar of South Vallur Estate. The village site is an open vacant place, used as a latrine, not very obviously in the physical possession of any one. To say that the site belongs to the Zamindar as village site is not the same thing as saying that the earth in it is all his private perquisite, which he can dispose of for his own private profit. The intention to cause wrongful loss to the Zamindar, or the contention that wrongful loss has been in fact caused to the Zamindar, has not been clearly made out. The matter is more of a civil nature than criminal.

(3.) I would therefore refuse to interfere and dismiss this petition. Madhavan Nair, J.