Kusuma Kumar @ A.R. Kannan v. State of Kerala and Bijukumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA,** ## **1945** **CRL.REV.PET NO. 1300 OF 2019** **AGAINST THE JUDGMENT DATED 30.11.2015 IN S.T.NO.746/2007 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT -V, (SPECIAL COURT FOR MARKLIST CASES) THIRUVANANTHAPURAM AND ORDER DATED 30/09/2019 IN CRL.M.P.NO.268/2018 IN CRL.A.NO.30/2018 ON THE FILE OF THE ADDITIONAL SESSIONS COURT-I, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **KUSUMA KUMAR @ A.R. KANNAN, AGED 54 YEARS S/O.APPUKUTTAN NAIR, SANTHINIKETHAN, T.C.4/92(1), YRA 34, VAYILEKADA JUNCTION, KOWDIAR, THIRUVANANTHAPURAM.** **BY ADV. SHAJIN S.HAMEED** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 BIJUKUMAR, S/O.NARAYANA PILLAI, RESIDING AT MELATHUL VEEDU, HOUSE NO.M-23, CHITHRA NAGAR, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM DISTRICT, PIN CODE-695 013.** **BY ADV. SRI.GEORGE MATHEW** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.1300 of 2019 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.R.P.No.1300 of 2019** **----------------------------------------------------------Dated this the 28[th] day of November, 2023** ## **O R D E R** In this revision petition filed under Section 397 r/w 401 of the Code of Criminal Procedure, 1973, the petitioner challenges correctness, legality and propriety of the order of the Additional Sessions Judge-I, Thiruvananthapuram dismissing a petition for condonation of delay and consequent dismissal of appeal filed by him challenging his conviction and sentence for an offence under Section 138 of the Negotiable Instruments Act, 1881(NI Act). 2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the 2[nd] respondent. 3. The 2[nd] respondent filed S.T.No.746 of 2007 before the Judicial Magistrate of the 1[st] Class-V (Special Court for Marklist Cases), Thiruvananthapuram, alleging commission of an offence under Section 138 of the NI Act. The allegations are that the petitioner issued a cheque for 3 Crl.R.P.No.1300 of 2019 Rs.20 lakhs in discharge of a debt owed by him to the 2[nd] respondent and when the cheque was presented for encashment, it was dishonoured for want of sufficient amount in the account of the petitioner. Despite giving notice, the petitioner failed to make the payment. The trial court after trying the petitioner on the said accusation found him guilty as per the judgment dated 30.11.2015. He was convicted and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs.20 lakhs to the 2[nd] respondent. 4. The petitioner preferred an appeal before the Sessions Court, Thiruvananthapuram. There was a delay of 803 days in filing the appeal. He filed Crl.M.P.No.268 of 2018 for condonation of delay. That petition was dismissed as per the order dated 30.09.2019. Consequently, the appeal was dismissed as barred by the Law of Limitation. 5. The learned counsel appearing for the petitioner would submit that there was sufficient reason for condoning the delay, but the appellate court without affording an opportunity to the petitioner of being heard, dismissed the 4 ## Crl.R.P.No.1300 of 2019 petition for condonation of the delay. It is explained that initially, the appeal was pending before the Sessions Court and after a few postings, the matter was made over to Additional Sessions Court-I, Thiruvananthapuram without giving notice to the petitioner. When the appeal was taken up for consideration before the Additional Sessions Court-I, Thiruvananthapuram on 19.03.2019, the petitioner did not have information regarding that fact and therefore he was not represented by his counsel. The matter was adjourned to 03.06.2019 and again on 18.07.2019. On those days, the said court did not sit and therefore the matter was adjourned to 25.09.2019. On that day, the petition for condonation of delay was considered in the absence of the petitioner and it was dismissed. The appellate court after hearing the counsel for the respondent and perused the records rendered the said order dismissing the petition for condonation of delay. 6. The learned counsel for the petitioner would submit that due to lack of notice, his counsel could not appear before the court and for that reason the petitioner 5 ## Crl.R.P.No.1300 of 2019 shall not be put to peril. Further it is submitted that having the appeal and the petition for condoning the delay been filed, it was only appropriate to decide the same on merits instead of, shutting out the remedy on technical ground. The absence of the petitioner's counsel was well justified and therefore the dismissal in his absence amounted to denial of opportunity. In that regard, the learned counsel placed reliance on **Ganesharaju S.(D) Thr. L.Rs. And Another v. Narasamma (D) Thr. L.Rs. And Others[2013(11) SCC** ## **341],** where it was held thus: 15. Unless Respondents are able to show malafide in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by. 18. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing 6 Crl.R.P.No.1300 of 2019 sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. In the instant case, we find that Appellants have shown sufficient cause seeking condonation of delay and same has been explained satisfactorily. 7. In **Delhi Development Authority v. Jagan** **Singh[2023 KHC OnLine 6696]** the Apex Court held that over the years, this Court has repeatedly held that a liberal and justice-oriented approach needs to be adopted in the matters of condonation of delay so that the substantive rights of the parties are not defeated only on the ground of delay. The power under Section 5 of the Limitation Act, 1963 must be exercised in a very meaningful manner which will serve the ends of justice. 8. The learned counsel for the 2[nd] respondent on the other hand would submit that as is evident from the impugned order and also from the revision petition, the petitioner knew about his conviction by the trial court while he was in Doha itself. It was on 30.11.2015. But he chose to come home only on 04.11.2017 and even after his coming 7 Crl.R.P.No.1300 of 2019 back, there occurred much delay. The appeal was filed only in February 2018 which shows the callous nature of the petitioner and therefore there was absolutely no reason to condone the delay. Accordingly, the learned counsel would submit that there is no illegality or irregularity in the impugned order and therefore this revision petition has no merit at all. 9. The matter relates to a criminal appeal. It is trite that a criminal appeal shall not be dismissed for default. Of course, here the question is regarding dismissal of the petition for condonation of delay in filing the criminal appeal. Although the said principle as such cannot be applied to a petition for condonation of delay, the said principle has an impact since the petition was decided without hearing the counsel for the petitioner and consequently the appeal was dismissed. As held by the Apex Court, it is always fair and appropriate that matters are decided on merits. Here the petition for condonation of delay was happened to be dismissed without affording an opportunity to the petitioner of being heard. The reason for such non-appearance can be 8 Crl.R.P.No.1300 of 2019 attributed only to the counsel and not to the petitioner for, in an appeal, it is not the party, but the counsel who is ordinarily appearing before the court. Taking all such matters into account, I am of the view that one more opportunity shall be given to the petitioner to pursue his petition for condonation of delay. In the said circumstances, this revision petition is allowed. Order in Crl.M.P.No.268 of 2018 in Crl.appeal No.30 of 2018 dated 30.09.2009 is set aside. Consequently the judgment, dismissing the appeal is also set aside. The matter is remitted to the appellate court for fresh consideration in the light of the law laid down by the Apex Court in the aforementioned decisions. The appellate court shall consider Crl.M.P.No.268 of 2018 after hearing both sides. In the event of allowing the said petition, the appellate court shall dispose of the appeal within a period of three months from the date of that order. Both sides shall appear before the appellate court on 12.12.2023. ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** PV