Axis Associates v. Zoe Solutions & Ors.

By this application applicant prayed for condonation of delay of 352 days for preferring appeal.

Heard. The learned Advocate for applicant contended that complaint was filed under section 138 of the Negotiable Instruments Act by the applicant herein

before the leaned Judicial Magistrate First Class ( Special Court), Nagpur The complaint was dismissed by impugned order dated 4-8-2007. Thus, in the result, accused were acquitted. 2

According to applicant, the impugned order suffers from illegality. the applicant had earlier challenged the same by Criminal Revision Application No.571/2007 before the learned Additional Sessions Judge, Nagpur which was dismissed on 16th April, 2008.

Thereafter, according to the applicant, respondent No.2 expressed willingness to settle the matter out of the Court and had assured applicant that amount would be paid. The applicant interested in getting back the amount but no amount was paid and therefore, the applicant has no other alternative but to prefer the appeal against the impugned order dated 4-8-2007.

The learned Advocate for the applicant contended that since applicant believed in good faith the words of respondent No.2, the applicant had opted to settle the matter out of the Court. Therefore, it is prayed that delay of about 352 days is caused for preferring the appeal may be condoned.

The learned Advocate appearing for respondent No.3 contended that no sufficient cause is made out in the application as mere possibility of settlement of the matter out of the Court cannot be excuse for the applicant to wait to file appeal which requires leave under Section 378(4) of the Code of Criminal Procedure within stipulated period.

Learned Advocate for respondent No.3 made reference ruling in Kaushalya Rani v. Gopal Singh reported in AIR 1964 SC 260, contends that Sections of the Limitation Act would not apply in respect of intended appeal by a private prosecutor as statutory bar of 60 days is specifically provided for in Section 378 (5) of the Code of Criminal Procedure. No application under sub- section(4) for grant of leave to appeal to appeal from an order of acquittal shall 3 be entertained by the High Court after expiry of 60 days from the date of the order of acquittal. Thus it is contended that in view of the Special law of limitation governing appeals by private prosecutors, Section 5 of the Limitation Act is wholly out of way in view of Section 29(2)(b). It appear that ruling in AIR 1964 SC 260 was distinguished later in Mangu Ram and another vs. Municipal Corporation of Delhi AIR 1976 SC 105 indicating that language of Section 29(2) of the Limitation Act permits applicability of Section 5 of the Limitation Act,

1963. It is only if the special or local law expressly excludes the applicability of Section 5 of Limitation Act, then it would stand excluded. Thus Section 5 of the Limitation Act shall apply even in case of special or local law to the extent to which it is not specifically or expressly excluded by special or local law.

Thus legal position is clear that section 5 of the Limitation Act is applicable despite statutory bar of 60 days as provided under Section 378(5) of the Code of Criminal Procedure. The question arise as to whether sufficient cause is made out by the applicant for condonation of delay of 352 days. From the certified copy of the notings from trial Court produced before this Court, it appears that from 17-7-2002 most of the times complainant was absent and no steps were taken. Therefore, it appears that repeatedly by remaining absent complainant has not shown their bonafide intention to prosecute accused. On 16-6-2007 complainant as well as accused were absent and steps were not taken. Under these circumstances, the proceedings were adjourned to 4-8-2007 and by impugned order the case was dismissed in default due to absence of complainant for want of prosecution. In the result, accused were acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act. Bail bond of accused were also cancelled.