M/s.Kalpataru Aluminiums Pvt. Ltd v. A Registered Company having its

By Order dated 25th August, 2008, this Court directed that this petition shall be decided finally at the stage of admission. The 1st to 3rd respondents are accused in a complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act, 1881. The complaint was disposed of by Judgment and Order dated 29th March,

2007. 1st to 3rd respondents were convicted. A Revision Application was filed by the petitioner before the Sessions Court for seeking enhancement of the sentence. There was a delay of three days in filing the Revision Application. By the impugned Order dated 28th November, 2007, the application for condonation of delay was rejected by the learned Additional Sessions Judge, Greater Bombay.

The impugned Judgment and Order of the learned 3 Magistrae was passed on 29th March, 2007. Page 36 of this petition shows that the petitioner applied for a certified copy thereof on 21st April, 2007. The certified copy was ready and delivered to the petitioner on 10th May, 2007. If the time required for obtaining the certified copy i.e. the period from 21st April to 10th May, 2007 is excluded, in view of the provions of Section 12(3) of the Limitation Act, 1963, the last date for filing the Revision application was 17th July, 2007. Admittedly the Revision Application has been filed on 19th July, 2007.

The learned Additional Sessions Judge held that the delay was in fact of more than three days which was not properly explained and therefore, the application for condonation of delay could not be entertained. He observed that delay was not properly computed and therefore, the application was not maintainable.

The learned counsel appearing for the respondent Nos.1 to 3 submitted that there is no explanation in the application for condonation of delay as to why the petitioner waited till 21st April, 4 2007, for applying for a certified copy. He submitted that the petitioner ought to have applied on 29th March, 2007 itself. He submitted that the period of limitation expired on 29th June, 2007. He submitted that as the petitioner had not applied for certified copy on the very day on which the learned Magistrate passed the impugned Order, the petitioner will have to explain each days' delay from 30th June, 2007 onwards. He, therefore, submitted that as the delay of every day was not explained, the learned Additional Sessions Judge was justified in rejecting the application.

I have considered the submissions. If time required for preparation of the certified copy of the impugned Judgment and Order is excluded, the period of limitation available to the petitioner was till 17th July, 2007 and the Revision Application has been filed on 19th July, 2007. The petitioner applied for a certified copy of the order before expiry of stipulated period of limitation. The Hon'ble Apex Court has time and again held that while dealing with the application for condonation of delay under Section 5 of the Limitation Act, 1963 a liberal and justice oriented approach is contemplated. On plain 5 reading of the impugned Judgment it appears that the learned Additional Sessions Judge has taken a very hyper-technical view while dealing with the application under Section 5 of the said Act of

1963. Even going by argument advanced by the advocate for original accused, the period of limitation was available till 29th June, 2007 and the Revision Application has been filed on 19th July, 2007. In my view, the approach of the learned Judge is completely contrary to the well settled principles of Law. Hence, the impugned Judgment and Order will have to be quashed and set aside and the delay will have to be condoned.

(i) (ii) (iii) (iv) Hence, I pass the following order. Impugned Judgment and Order dated 28th November, 2007 is quashed and set aside. Miscellaneous Appln. No.1002 of 2007 is hereby allowed. The delay stands condoned. The Sessions Court will proceed to register the Revision Application.

(A.S.OKA, J.)