TMI Blog2022 (4) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, the complainant ought to have been given an opportunity to make necessary application to condone the delay and admittedly for the first time, the issue has been raised before the Appellate Court. Only on the ground that there is a delay, the complaint of the complainant cannot be thrown to the dustbin - It is important to note that an amendment is brought in the year 2003 to Section 142 and clause (b) was inserted keeping in mind the reasons and objects of the Act and to obviate the complainant of the hardship. The Court has to take note of the wisdom of the legislature in bringing such an amendment and when the issue is raised for the first time in the appeal, the Court has to take note of all these factors into consideration. The Court has to take note of the very proviso of Section 142(b) of the N.I. Act which confers jurisdiction upon the Court to condone the delay i.e. original Court or otherwise the very purpose and wisdom of the parliament would be defeated. The issue of limitation for the first time is raised before the Appellate Court and the Court exercising the discretion to condone the delay did not arise at all before the Trial Court and hence the Appellate Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd there is no application filed before the Trial Court and very initiation of the proceeding against the petitioners is erroneous and the Court also failed to take note of the material on record and committed an error in convicting the petitioners. The Appellate Court taking note of the grounds urged in the appeal, framed the points for consideration whether the complaint is liable to be dismissed in view of the delay and whether the judgment and sentence passed by the Trial Court requires interference and answered Point No.1 as negative and remanded the matter to consider the same afresh by giving an opportunity to the complainant to file necessary application for condonation of delay and directed the Trial Court to decide the application first and thereafter proceed with the matter as per law relying upon the judgment of the Apex Court in the case of Pawan Kumar Ralli and consequently, set aside the order of conviction and sentence passed by the Trial Court. Hence, the present revision petition is filed before this Court. 3. The learned counsel appearing for the petitioners would vehemently contend that the Appellate Court has wrongly relied upon the judgment of the Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strous results. 7. The counsel for the petitioners also relied upon the unreported judgment of this Court in Crl.A.No.186/2007 dated 23.03.2010 between SRI T.S.MURALIDHAR v. SRI H NARAYANA SINGH wherein an observation is made that the learned Magistrate had no jurisdiction to condone the delay in lodging the complaint after the trial was over and when the case was posed for arguments on merits. 8. The counsel for the petitioners also relied upon the unreported judgment of this Court in Crl.A.No.2640/2011 dated 26.06.2020 between SRI KRISHNAPRASAD v. SRI DODDAPPA L SHIRUR wherein this Court has relied upon the judgment of T.S.Muralidhar s case as referred supra wherein condoned the delay and remitted back the case to the Trial Court. 9. The learned counsel for the petitioners relied upon the unreported judgment of this Court in Crl.P.No.15517/2013 dated 07.11.2015 between MARUTIRAO HOSMANI v. SURESH wherein an observation is made referring upon the judgment of the Apex Court reported in ( 2014) 15 SCC 245 in the case of PAWAN KUMAR RALLI v. MANINDER SINGH NARULA and held that taking of cognizance being vitiated and directed the Magistrate to proceed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners herein shall decide the application first and then proceed in accordance with law. Hence, this Court cannot find fault with the order passed by the Appellate Court in Crl.A.No.2458/2019. The learned counsel submits that the Appellate Court in paragraph No.12 has observed that for the first time, in the appeal memo and also in the appeal, the contention of delay is raised. The learned counsel also made the submission that no application is filed before the Trial Court for condonation of delay and the Trial Court after confirming the same on perusal of the entire order sheet gave an opportunity since for the first time, the question of delay is raised in the Appellate Court. Hence, the Appellate Court has not committed any error in setting aside the judgment of conviction and sentence and remitting the matter for fresh consideration and in giving an opportunity to file the application. 14. The learned counsel in support of his argument relied upon the judgment of the Apex Court in the case of Pawan Kumar Ralli (supra), wherein the issue of limitation raised for the first time before the High Court was taken note of by the Appellate Court and the proceedings was quashed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel also relied upon the decision of the Division Bench of this Court in the case of STATE OF KARNATAKA v. NAGAPPA dated 28.06.1985 passed in C.R.P.No.3947/1984, wherein it is held that filing of application for condonation of delay with time barred appeal mandatory. Does not attract penalty of dismissal of appeal for non-compliance of procedural defect. 18. The learned counsel also relied upon the judgment of this Court in the case of MARUTIRAO HOSMANI v. SURESH reported in LAWS (KAR) 2015-11-14 and brought to the notice of this Court that this Court referred the judgment of T.S.Muralidhar s case (supra) which has been referred by the learned counsel for the petitioner, wherein it is held that the principles laid down in the judgment in T.S.Muralidhar s case (supra) is not a good law. The learned counsel would submit that in the said case, application was filed at the stage of Section 313 statement to condone the delay of ten days in filing the complaint and I.A. and complaint was dismissed and hence the Court remanded the case to the Trial Court to proceed with the case from the stage prior to the taking of cognizance. The learned counsel would vehemently contend t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidhar s case cannot stand in view of the Apex Court s pronouncement. Having considered those judgments, allowed the appeal and set aside the order and remanded the matter to the Trial Court. 21. The main contention of the learned counsel for the petitioners before this Court is that the said judgment is not applicable since the Appellate Court in the said judgment invoked Article 142 of the Constitution of India in order to meet the ends of justice and the impugned judgment of the High Court quashing the criminal proceedings is set aside and the criminal proceedings before the Trial Court are restored. It is observed that the appellant is permitted to file an application for condonation of delay before the Trial Court, and if such an application is filed, the Trial Court shall be at liberty to consider the same on its own merit. It has to be noted that this judgment is passed challenging the order passed by the High Court invoking Section 482 of Cr.P.C. on the ground that the said complaint was barred by limitation. The Apex Court observed that the issue of limitation is raised for the first time before the High Court, but in the case on hand, the issue of limitation is raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laying down a legal proposition that without even filing an application for condonation of delay at initial stage, the complainant can be given an opportunity in respect thereof at any stage of the proceedings. But the fact is that when the issue of limitation is raised before the Appellate Court, immediately the complainant has filed an application before the Appellate Court for condonation of delay and the Appellate Court comes to the conclusion that the delay cannot be considered in Appellate Court usurping the powers of the Trial Court and the same has to be dealt with by the Trial Court and the same is in accordance with the judgment of the Appellate Court. Hence, I do not find any force in the contention of the learned counsel for the petitioners that the said judgment is laid down invoking Article 142 of Constitution of India. The Court has to look into the principles laid down in the judgment and the fact is that the Appellate Court has observed that in the peculiar facts and circumstances i.e., with regard to raising of issue of limitation for the first time in the High Court passed an order and in the case on hand also, the very same circumstances of issue of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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