P.K. Shaji Pathayil v. Jithu Jose and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **MONDAY, THE 26TH DAY OF NOVEMBER 2012/5TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 2343 of 2011 ( )** **-------------------------------CRA.221/2001 of D.C. & SESSIONS COURT,KOTTAYAM ST.3025/2010 of J.M.F.C.,VAIKOM** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **P.K.SHAJI PATHAYIL HOUISE, NEAR DESABHIMANI PRESS, KOTTAYAM.** **BY ADVS.SRI.P.N.SUKUMARAN SRI.BIJU SUKUMARAN SMT.K.AMMINIKUTTY** ## **COMPLAINANT(S)/COMPLAINANT/STATE:** **---------------------------------** **1. JITHU JOSE NEDIYOOZHATHIL HOUSE, ELAMKULAM P.O., KALOOR ERNAKULAM.** **2. THE STATE OF KERALA, REP. THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.K.RAVIKUMAR R1 BY ADV. SRI.S.DILEEP R2 BY PUBLIC PROSECUTOR SRI.BIJU MEENATOOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** S.SIRI JAGAN, J. ================== Crl.R.P.No. 2343 of 2011 ================== Dated this the 26[th] day of November, 2012 **==> picture [64 x 11] intentionally omitted <==** The petitioner is the accused in S.T.No.3025/2010 before the Judicial First Class Magistrate's Court, Vaikom. The case was registered as per the complaint of the 1[st] respondent under Section 138 of the Negotiable Instruments Act, in which, the petitioner stated thus: The petitioner herein borrowed an amount of ` 11,50,000/- from the 1[st] respondent-complainant, towards discharge of which liability, two cheques were issued by him, which, on presentation for encashment, were returned dishonoured by the Bank for insufficiency of funds. The 1[st] respondent issued a statutory notice demanding the amount, despite which also, the petitioner did not pay the amount covered by the cheques. Thus, the petitioner committed the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner appeared before the Magistrate on receiving summons and entered a plea of not guilty on 1.10.2010. While further proceedings were going on, on the basis of the said plea of guilty, the petitioner filed an application dated 31.1.2011, which reads thus; Crl.R.P.2343/11 - : 2 :- èÕA¢ ¼áÁà×cW ²KÞ¢ µïÞØí μßØíçd¿xí çµÞ¿Äß ÎáOÞæµ S.T. 3025/10 çÎW ÈOV çµØßW dÉÄß P.K. ×Þ¼ß çÌÞÇßMßAáKå¥çÉf ¨ ÈOV çµØí µÞøcBZ ¾ÞÈᢠÕÞÆßÏáÎÞÏß 10,00,000/_ (ÉJí Üf¢ øâÉ) øáÉÏíAí ÉùEí ÄàVJßGáUÄá¢, ¿ß ÄáµÏßW ÈÞÜí (4,00,000/_) Üf¢ øâÉÞ 31/3/2011Èᢠ(3,00,000/_) ÎâKí Üf¢ øâÉÞ 30/9/2011 ÈᢠÎâKí Üf¢ øâÉÞ (3,00,000/_) 31/12/11 ÈᢠÈWµáKÄßÈí ØNÄߺîßGá{ÄÞÃí.å ¦µÏÞW çµÞ¿ÄßÏßæÜ ÆÏÕáIÞÏß ¿ß ÈOV çµØßW ÈßKᢠµáxÉdÄ¢ ÕÞÏߺîíåçµZAáKÄßÈᢠµáx¢ ØNÄߺîí æÎÞÝß ÈWµáKÄßÈᢠ¥ÈáÕÆߺîí ©JøÕáIÞµÃæÎKí ¥çÉfßAáKá.å dÉÄß:: P.K. ×Þ¼ßå 31.1.11 AS requested by the petitioner, on the very same day, viz., 31.1.2011, charge sheet was again read over to the petitioner and the petitioner pleaded guilty of the offence charged against him. Based on the said plea of guilty, the Magistrate convicted the petitioner and sentenced him to pay a fine of ` 10,00,000/-, in default of payment of which, the petitioner was directed to undergo simple imprisonment for six months. The fine, on realisation, was directed to be paid as compensation to the 1[st] respondent-complainant. On the very same day, the petitioner filed a petition for time to pay the compensation amount, which reads thus: èÕA¢ ¼áÁà×cW ²KÞ¢ µïÞØí μßØíçd¿xí çµÞ¿Äß ÎáOÞæµ S.T. 3025/10 çÎW ÈOøßW dÉÄß P.K. ×Þ¼ß çÌÞÇßMßAáKå¥çÉf çÎW ÈOøßW ¾ÞX µáx¢ ØNÄߺîßGá{ÄÞÃí.å¿ß ÈOV çµØßæÜ çµÞOXçØ×X Äáµ ¥¿AáKÄßÈí ®ÈßAí ØÞÕµÞÖ¢ ÈWµáKÄßÈí ¥ÈáÕÆߺîí ©JøÕáIÞµÃæÎKí ¥çÉfÏáUÄÞÃí. ¦µÏÞW çµÞ¿ÄßÏßæÜ ÆÏÕáIÞÏß ¿ß çµØßæÜ çµÞOXçØ×X Äáµ ¥¿AáKÄßÈí ØÞÕµÞÖ¢ ¥ÈáÕÆߺîí ©JøÕáIÞµÃæÎKí ¥çÉfߺîá æµÞUáKá. 31.1.11 dÉÄß:: P.K. ×Þ¼ß Crl.R.P.2343/11 - : 3 :- On 17.6.2011, the petitioner filed Crl.Appeal No.221/2011 before the Sessions Judge, Kottayam, along with a petition seeking to condone the delay of three months and 17 days in filing the appeal. No interim order of stay of suspension of the sentence was granted in that appeal. In the above circumstances, the 1[st] respondent sought execution of the sentence against the petitioner. Pursuant to the same, the Magistrate issued a warrant of arrest for executing the sentence. On 24.6.2011, the petitioner filed a petition for recalling the warrant. The petitioner also approached this Court challenging the order refusing to recall the warrant, by filing Crl.R.P.No.1615/2011 and obtained interim orders. Subsequently, the said Criminal Revision Petition was dismissed as infructuous. By order dated 17.8.2011, the Sessions Court considered Crl.M.P.No.1993/2011 for condonation of delay in filing Crl.Appeal No. 221/2011 and dismissed the petition to condone delay, which order reads thus; ## “O R D E R ## The application is under S.5 of the Limitation Act. 2. The petitioner seeks to condone the delay of 3 months 17 days in filing the appeal, by the application. The petitioner was the accused in S.T.No.3025/10 on the file of Judicial First Class Magistrate's Court, Vaikom. The 1[st] respondent in the petition had instituted the case alleging that the petitioner had borrowed ` 11,50,000/- from him and two cheques were issued in discharge of the liability but the cheques which were sent for collection were dishonoured due to insufficiency of funds in his account and he has Crl.R.P.2343/11 - : 4 :- failed to pay the amount even though a notice has been issued to him asking him to pay the amount and thus he has committed offence under S.138 of the Negotiable Instruments Act. 3. The trial court convicted the accused and sentenced him to pay fine ` 10,00,000/- with a default clause of simple imprisonment for six months on the basis of admission of guilt by the petitioner. The appeal is filed by challenging this conviction and sentence made by the trial court. 4. According to the petitioner he has given a statement of guilt in the trial court due to threat and misrepresentation by the complainant, his father and others. According to him, only when warrant was issued to him he came to know about the details of the case. He has stated in the petition that he was at Delhi in connection with his job and it was because of this delay was caused in filing the appeal. 5. The application is resisted by the 1[st] respondent who is the complainant. As seen from the objection filed by the 1[st] respondent the dispute was referred to the Adalath and it was after many sittings the matter had been settled. For effecting settlement he had given up ` 1,50,000/-. It is stated in the objection that the petitioner had admitted gilt and had agreed to pay ` 1,00,000/- in three instalments voluntarily with free will. 6. It could be seen from the very nature of the case put forth in the petition as ground for condoning the delay that the petition is filed without any bonafides. The reason given for the delay is not at all believable. What the petitioner has stated is that he was at Delhi in connection with his job and it was for this reason delay was caused in filing the appeal. It is a case where the petitioner, either willingly or with coercion had admitted guilt before the trial court. If it was based on threat or coercion by the defacto complainant and his people the petitioner could have approached the appellate court immediately challenging the conviction and sentence passed by the trial court. On the other hand he had immediately left for his job and had filed the appeal only after warrant has been issued against him consequent to his non payment of the amount as agreed upon. I do not find any reason to accept the explanation given by the petitioner in filing the appeal. In the result, the petition is dismissed” On the very same day, Crl.Appeal No.221/2011 was also dismissed, since the petition to condone the delay in filing the appeal was dismissed. The petitioner is challenging the Crl.R.P.2343/11 - : 5 :- judgments of the courts below. 2. According to the petitioner, the petitioner did not voluntarily plead guilty, but was misled by the promises made by the 1[st] respondent to induce him to plead guilty on reciprocal terms, to be complied with by the father of the 1[st] respondent, which were not complied with. Therefore, according to the petitioner, the plea was not entered voluntarily and, therefore, the petitioner is entitled to challenge the judgments of the courts below. I am not separately detailing the grounds, on which, the petitioner has filed this Criminal Revision Petition, since the advocate for the petitioner has filed a very lengthy argument note, which I propose to extract in full in this judgment. 3. The learned counsel for the 1[st] respondent submits that all the contentions of the petitioner are totally unsustainable. He submits that conviction was entered under Section 225(3) of the Cr.P.C. on a plea of guilty entered by the petitioner and, therefore, there is no procedural irregularity committed by the Magistrate in respect of the same. It is submitted that there are no materials on record in support of the contention of the petitioner regarding reciprocal promises as the basis of the plea of guilty. According to him, as a compromise, he Crl.R.P.2343/11 - : 6 :- has forgone ` 1,50,000/- and there is absolutely no material to show any reciprocal promise by the father of the 1[st] respondent as contended by the petitioner. According to him, the plea entered by the petitioner was voluntary as is clear from his petition and there is no material to indicate otherwise. It is submitted that the appeal and the contention raised are afterthought to wriggle out of the liability of the petitioner to pay the cheque amount. It is also submitted that the petitioner has not adduced any evidence to prove the reasons for the delay, without which, the delay cannot be condoned. It is further submitted that insofar as Section 375 of the Cr.P.C., the appeal filed by the petitioner is not maintainable. Of course, the learned counsel for the 1[st] respondent relies on the decision of this Court in **State v. Gopinatha Pillai** , 1978 KHC 186, wherein it has been held that Section 375 is applicable only for a genuine plea of guilty made freely and voluntarily. 4. After arguing the Criminal Revision Petition on several days in extenso, for reasons best known to the counsel of the petitioner, the learned counsel for the petitioner has chosen to file an unsolicited argument note. The same reads thus: Crl.R.P.2343/11 - : 7 :- ## “BEFORE THE HON'BLE HIGH COURT OF KERALA, AT ERNAKULAM. Criminal Revision Petition 2343/2011 P.K.Shaji : Revision Petitioner Jithu Jose and another : Respondent ## Argument Notes submitted by the counsel for the petitioner ## in the above Criminal R.P. 1. The Revision Petition is the accused in S.T.No.3025/2010 on the file of the Court of Judicial Magistrate of First ClassI, Vaikom. The above case arose out of the complaint instituted by the First respondent herein u/s.138 of the Negotiable Instruments Act. The allegation in the complaint, in short, was that the petitioner herein had borrowed an amount of Rs.11,50,000/- from the first respondent/complainant and towards the discharge of the said liability; two cheqeus were issued by him. It was alleged by the first respondent that those cheques when sent for collection, were returned dishonoured for 'insufficiency of funds'. Hence the first respondent filed the above complaint. 2. The petitioner appeared through lawyer in the above case in furtherance of the summons issued by the trial court and pleaded not guilty. It is submitted that the petitioner had no connection whatsoever with the first respondent who had instituted the above case against him. The cheques which are the subject of the above complaint were actually issued by him in favour of the father of the first respondent Mr.Jose. The said Mr.Jose is a private financier from whom the petitioner had borrowed an amount of Rs. 8,00,000/-. The said amount was disbursed to the petitioner by the said Jose after obtaining the signatures in a few blank papers and two signed blank cheques as well. Over and the above the aforesaid documents, the father of the first respondent also required the petitioner to provide further security by way of executing a Sale Deed in respect of the property owned by him, on an understanding that the said property would be re conveyed to him on satisfaction of the debt. 3. The petitioner has no privity with the first respondent who had preferred the complaint u/s 138 of the Negotiable Instruments Act, using two cheques issued by the petitioner in favour of the father of the first respondent. The cheques given by the petitioner have been misused by the father of the first respondent who is a notorious private financier by Crl.R.P.2343/11 - : 8 :- filing a cheque case through his son before the Magistrate court under whose jurisdiction neither the petitioner nor the first respondent resides. Therefore after the amendment of the Code an enquiry u/s 202 of the Code of Criminal Procedure is mandatory on the part of the Magistrate before taking cognizance and this has been decided in Joseph.K.T. V State of Kerala and another reported in 2009 (2) KLT 873. 4. When S.T.No.3025/2010 came up for trial, the father of the first respondent, the first respondent and their henchmen who were present in the court premises compelled the petitioner to settle the issue by agreeing to pay an amount of Rs. 10,00,000/- in instalments. The petitioner was also made to believe by the father of the first respondent that on such settlement would re-convey the property purchased by him from the petitioner. Yielding to the compulsion of the first respondent and his father, the petitioner signed a settlement without actually reading the contents of the same and understanding the consequences arising thereof. The agreement between the father of the first respondent and the petitioner that the property conveyed to the former as per Annexure I document would be re-conveyed simultaneously was fraudulently omitted from the said statement. The petitioner, who was anxious to give a quietus to the issue, did not notice the fraud played upon him by the first respondent and his father. The Revision Petitioner appeared only twice before the trial court and there were not much deliberations between the petitioner and the complainant regarding the settlement in the above case. Moreover the counsel engaged by the Revision Petitioner was laid up due to the fracture sustained to his hand and there was no occasion for the Revision Petitioner to consult his lawyer before filing the alleged petition for framing the charge again before the Learned Magistrate. The above circumstances also were not considered by the Learned Magistrate while pronouncing the order of conviction and sentence against the petitioner in the above case. On the basis of the aforesaid statement, the trial court held that the petitioner has pleaded guilty and accordingly convicted and sentenced him to pay a fine of Rs. 10,00,000/and in default to suffer simple imprisonment for a period of six months. 5. The petitioner became aware of the fact that he was defrauded by the father of the first respondent when the latter went back from his promise to re-convey the property conveyed as per Annexure I sale deed. In the circumstances, the petitioner filed Criminal Appeal No.221/2011 before the Court of Session, Kottayam, along with an application to condone the delay of 107 days in Crl.R.P.2343/11 - : 9 :- filing the appeal and an application for suspending the sentence imposed by the trial court. But, the Learned Sessions Judge, without considering the gross illegality committed by the Learned Magistrate, straightaway dismissed the delay petition on flimsy grounds. 6. It is submitted that the Learned Magistrate is not absolved of the obligation to record the substance and evidence. Otherwise, it would be difficult to conceive as to what could the accused have pleaded to. His plea of guilt is an admission to whatever factual data the prosecution lays before the court about the commission of the offence. Pleading guilty by the accused to the violation of a provision of law is no plea at all, as he would have to be confronted with the substance of the allegation, in order to enter upon a plea, one way or the other. When the substance of the allegation is not put to the accused, his entering any kind of plea is no plea legally, due to the non-observance of such procedural requirement of utmost importance. The court below not considered the above mentioned propositions laid down by the Hon'ble Supreme Court in the following cases:Pavan Kumar v. State of Haryana reported in 1996 (4) SCC 17, Kasam Bhai Abdul Rahman Bhai Sheik v. State of Gujarat and another, Ganeshmal Jashraj v. Government of Gujarat and another reported in 1980 (1) SCC 363 and State v. Gopinatha Pillai reported in 1978 KLT 779. 7. The Learned Magistrate was in the circumstances not entitled to take into account the admission of guilt made by the Revision Petitioner in reaching his decision in regard to the conviction of the Revision Petitioner. Mechanically as a matter of formality, in support of the admission of the guilt, the Learned Magistrate was affected by the admission of guilt made by the Revision Petitioner and in the circumstances, it would not be right to sustain the conviction of the Revision Petitioner. 8. On 07.10.2010 the accused pleaded not guilty and the Learned Magistrate recorded the plea and proceeded with the trial. Therefore the petition filed by the accused to review the earlier order of framing charge and to read again the charge will not confer jurisdiction on the Magistrate to review his earlier order. The above principle has been laid down by the Hon'ble Supreme Court in the case of Adalath Prasad v. Rooplal Jindal reported in 2004 (3) KLT 382. 9. The Learned Magistrate has not recorded anywhere in the proceedings or in the judgment regarding the substance of the allegations against the accused, though strict directions were issued by this Hon'ble Court to all the Magistrate Crl.R.P.2343/11 - : 10 :- courts in the state that on appearance of the accused u/s 251 of the Code, the court shall state the particulars of the offence to the accused (and the records must clearly indicate what were such particulars read out to accused, though a formal charge need not be framed) as per the judgment in Joseph P.V. v. State of Kerala and another reported in 2010 (4) KLT 697. The Learned Magistrate has not recorded a brief statement of the reasons for convicting the accused and on the other hand pronounced a nonspeaking order simply passing the conviction and sentence in the above case. So the trial in the above case is vitiated on that ground also. 10. Therefore from the reasons stated above the Learned Magistrate has committed grave illegality throughout the trial of the above case and the illegality so committed as born out from the records are as follows:- - i. The Learned Magistrate has not applied his mind while taking cognizance in the above case and he has not conducted an enquiry u/s 202 CrPC, which is mandatory after the amendment of the Code, since the accused is not residing within the jurisdiction of the trial court. - ii. The Learned Magistrate has not recorded the substance of the allegations and not recorded the particulars read out to the accused as per section 251 of the CrPC. - iii. The Learned Magistrate earlier recorded the plea of not guilty and thereafter he had no power to review his order and again allowed the accused to plead guilty in the above case. The petition filed by the accused to read the charge again will not confer jurisdiction to review the earlier order of the Magistrate. - iv. The Learned Magistrate has not complied the procedure for plea bargaining as per chapter XXI-A of Cr.PC. If the Learned Magistrate decided to consider the petition filed by the accused, that would be dealt with the provisions of plea bargaining as contemplated in the above chapter. - v. The judgment as provided u/s 354 of the CrPC has not been complied with in the above case and on the other hand simply pronounced a cryptic order mentioning only conviction and sentence without stating any reasons. Crl.R.P.2343/11 - : 11 :- - vi. In column No.7 in the extract of register of summary trial which is written as settled. If the case is settled there is no provision to convict an accused in the above case since it is a compoundable offence. So, this Hon'ble Court is empowered to exercise in revision to rectify the illegality committed by the trial court in the above case. The plea of the accused is not a genuine plea and the circumstance in which he has pleaded guilty was due to the fraud committed by the complainant and his father. In fact, he sought one year time for the payment on condition that the property owned by him will be re-conveyed at the time of payment of the first instalment as agreed been the parties. So the accused was under the belief that the judgment in the above case would be passed in accordance with the settlement. But, The Learned Magistrate without informing the consequences of the plea of guilty immediately passed the conviction and sentence and subsequently issued warrant against him. So, the petitioner was not aware of the proceedings of the court below and he was not even served a copy of the judgment as contemplated by the law. Moreover he was not in station at that relevant time and therefore could not file the appeal before the Sessions Court in time. He has mentioned the reasons for the delay for filing the appeal before the Sessions Court but, the Learned Sessions Judge, without considering the merit of the case and also the gross illegality committed by The Learned Magistrate, straightaway dismissed the above appeal. It is therefore most humbly prayed that this Hon'ble court may be pleased to uphold the above contentions of the Revision Petitioner and set aside the conviction and sentence passed by the Judicial First Class Magistrate's Court-I, Vaikom in S.T.No.3025/2010 against the Revision Petitioner and remand the above case with a direction to dispose the same in accordance with law on merit.” ## (underlining supplied) ## 5. I have considered the rival contentions in detail. 6. At the out set I must note that the question of considering the petitioner's contentions on merits regarding the sustainability of the order of the Magistrate on the plea of guilty made by the petitioner arises only when I hold that the petitioner's right to file an appeal is not barred by limitation. Crl.R.P.2343/11 - : 12 :- That is because once it is held that a remedy is barred by limitation, the correctness of the order, against which, the appeal, which is barred by limitation, is sought to be filed, cannot be canvassed thereafter. In this case, the appeal filed by the petitioner before the Sessions Court, Kottayam was dismissed not on merits, but only because the petition to condone delay in filing the appeal was dismissed. In fact, it is amusing to note that after stating in the memorandum of revision petition that while considering the petition to condone delay, the Sessions Judge ought not to have considered the merits of the contentions against the judgment of the Magistrate. In fact, on this point, Grounds D and F of the memorandum of revision petition are mutually contradictory. They read thus: “D. The Learned Court Session, by dismissing the application for condonation of delay has effectively shut and foreclosed the right of first appeal available to the petitioner. The petitioner had raised valid grounds for interference in appeal and the impugned order has virtually confined the order of the trial Court without even considering if the grounds raised in the appeal are worthy of any interference by the Court of First Appeal. **==> picture [166 x 6] intentionally omitted <==** F. The learned judge erred by failing to appreciate that a Section 5 application has to be decided on the basis of the averments regarding sufficient cause for delay; as opposed to a pre-supposition regarding the guilt of the person on the basis of an alleged admission of guilt of the person. The Petitioner submits that the same is pre-judging the matter and contrary to and unsustainable in the eyes of law.” At one breach he wants the Sessions Judge to take into account Crl.R.P.2343/11 - : 13 :- his grounds of appeal and on the other breath, he wants the Sessions Judge to confine to the reasons for the delay. The petitioner himself raises mainly, contentions on merits regarding the validity of the judgment of the Magistrate in the argument note filed before me. In fact, in the argument note, the petitioner has not chosen to challenge the reasoning given by the Sessions Judge for dismissing the application to condone delay by justifying the explanation offered for such delay on merits. All what he has stated in his argument note is the portion underlined by me in the argument note, which are only repetition of the reasons in the petition to condone delay and are not grounds as to why the reasoning of the learned Judge is wrong. 7. The petitioner complains that the Sessions Judge has, while disposing of the petition for condoning delay, instead of considering the explanation for the delay, considered the merits of the contentions regarding the validity of the judgment of the Magistrate. In fact I do not find any such consideration in the matter. The Sessions Judge has confined herself entirely to the merits of the explanation offered for the delay. As is clear from the order of the Sessions Judge, the explanation offered by the Crl.R.P.2343/11 - : 14 :- petitioner was that he was at Delhi in connection with his job and that is the reason for the delay in filing the appeal. But I notice a petition available in the lower court records of the Magistrate's Court dated 24.5.2011, which reads thus: èÕA¢ ¼áÁà×cW ²KÞ¢ µïÞØí μßØíçd¿xí çµÞ¿Äß ÎáOÞæµ S.T. 3025/10 çÎW ÈOV çµØßW dÉÄßÍÞ·¢ ¥ÁbçAxíå V.V.ØÄcX çÌÞÇßMßAáK ¥ÁbÞXØí ÙV¼ß.å ¨ ÈOV çµØßæÜ dÉÄß §çK ÆßÕØ¢ çµÞ¿ÄßÏßW í ÙÞ¼øáUÄÞÃ. ¦µÏÞW çµÞ¿ÄßÏßæÜ ÆÏÕáIÞÏß ¿ß ÈOV çµØí 30/6/11 W ÈßKᢠ§çK ÆßÕØçJÏíAí ¥ÁbÞXØí æºÏñí ©JøÕáIÞµÃæÎKí ¥çÉfßAáKá.å 24/5/11 ¥ÁbçAxíååV.V.ØÄcX (underlining supplied) Going by the same, on 24.5.2011, the petitioner was personally present before the Magistrate. It is interesting to note here that the appeal is filed only on 17.6.2011. Therefore, going by the petition dated 24.5.2011 filed by the petitioner before the Magistrate, his averment in the petition to condone delay before the Sessions Court that he was away at Delhi in connection with his job, at least on 24.5.2011, is false, to say the least. Further, in the Criminal Revision Petition he gives a different version. In Ground E of the Criminal Revision Petition he states that the delay occasioned because of his state of mind, agony, and depression occasioned by the mischievous conduct of Crl.R.P.2343/11 - : 15 :- respondents 1 and 2 coupled with his financial difficulties. It is interesting to note herein that the petitioner has roped in the Public Prosecutor as well, who is the 2[nd] respondent herein, who has absolutely no role in the matter. As such, as regards the explanation offered for the delay, the petitioner never had a consistent case. He knew very well on 31.1.2011 itself that he had already pleaded guilty and a sentence had been imposed on him and if he does not comply with the direction to pay fine, he would have to undergo simple imprisonment for six months. After having filed a petition seeking time to pay the fine amount, after the conviction and sentence by the Magistrate, the petitioner cannot be heard to contend that he was not aware of the proceedings of the court below. Even when petition to condone delay is to be considered liberally, the petitioner has to state the reasons truthfully and there should be some plausible explanation for the delay. Here the explanations are contradictory and do not inspire any confidence in the court regarding the truthfulness of the case of the petitioner to any extent. In fact, the contradictory statements are reasons to doubt the bonafides of the petitioner. In such circumstances, I am unable to find any infirmity whatsoever in the order and Crl.R.P.2343/11 - : 16 :- judgment of the Sessions Judge in dismissing the petition to condone delay and dismissing the appeal on the ground of limitation. Once I uphold the order of the Sessions Court dismissing the petition to condone delay and the dismissal of the appeal itself on the ground of delay, then the petitioner has no remedy left to challenge the judgment of the Magistrate, since the same has become barred by limitation. The jurisdiction under Section 397 cannot be invoked to resurrect a right of appeal, which has already been barred by limitation. Once barred by limitation, the right of the petitioner to challenge the judgment of the Magistrate is lost forever. In the above circumstances, I am of opinion that it is not necessary to consider the contentions on merits raised by the petitioner against the judgment of the Magistrate. Accordingly, this Criminal Revision Petition is dismissed upholding the orders and judgments of the courts below. sdk+ Sd/S.SIRI JAGAN, JUDGE P.A. to Judge Crl.R.P.2343/11 - : 17 :- Crl.R.P.2343/11 - : 18 :- ## , which reads thus: èÕA¢ ¼áÁà×cW ²KÞ¢ µïÞØí μßØíçd¿xí çµÞ¿Äß ÎáOÞæµ S.T. 3025/2010 ÕÞÆß dÉÄß ¼ßJá ç¼ÞØí Éß.æµ. ×Þ¼ß çÎW ÈOV çµTßW dÉÄß Éß.æµ. ×Þ¼ß, S/o.çµÞø, ÉÞÄÏßW Õà¿í, çÆÖÞÍßÎÞÈß dÉØßÈá ØÎàÉ¢ çµÞGÏ¢ çÌÞÇßMßAáK ÙV¼í¼ß. §æÄÞKߺîá ÙÞ¼øÞAáK ØÄcÕÞ¹íÎâÜJßW ÕßÕøßAáK µÞøÃB {ÞW ®ÈßæAÄßæø ÌÙá: çµÞ¿ÄßÏßW ÈßKᢠÉáùæM¿áÕߺîßGáU ¥ùØíxí ÕÞùIí ÉßXÕÜߺîí ©JøÕáIÞµÃæÎKí ¥çÉfߺîáæµÞUáKá. 24.06.2011 dÉÄß:: Éß..æµ.. ×޼ߔ èÕA¢ ¼áÁà×cW ²KÞ¢ µïÞØí μßØíçd¿xí çµÞ¿Äß ÎáOÞæµ S.T. 3025/2010 ÕÞÆß dÉÄß ¼ßJá ç¼ÞØí Éß.æµ. ×Þ¼ß çÎW ÈOV çµTßW dÉÄß Éß.æµ. ×Þ¼ß, S/o.çµÞø, ÉÞÄÏßW Õà¿í, çÆÖÞÍßÎÞÈß dÉØßÈá ØÎàÉ¢ çµÞGÏ¢ ØÄc¢ æºÏñá çÌÞÇßMßAáK ØÄcÕÞ¹íÎâÜ¢.. 1. ¾ÞX çÎWÈOV çµTßW dÉÄßÏÞÃí.å®ÈßAí ¿ß çµTá µÞøcBZ ¥ùßÏÞ¢. 2. çÎW ÈOV çµTí 10 Üf¢ øâÉ ·ÁáA{ÞÏß æµÞ¿áJí ÄàVJí §¿ÉÞ¿ÕØÞÈßMߺîáæµÞUÞ¢ ®K ÇÞøÃÏßW 31.01.2011 ÄàÏÄß ¥ÕØÞÈßMߺîßGáUÄÞÃí.å¿ß ÇÞøÃÏÈáØøߺîí 31.03.2011 ÄàÏÄß 4 Üf¢ øâÉÏᢠ30.09.2011 Èí 3 Üf¢ øâÉÏᢠ31.12.2011 Èí 3 Üf¢ øâÉÏᢠæµÞ¿áJá ÄàVJá æµÞUÞæÎKÞÃí ÕcÕØíÅ æºÏñßøáKÄí.å¥dɵÞø¢ §¿ÉÞ¿Õ ØÞÈßMßAáKÄßÈí ®ÈßAí 31.12.2011 ÄàÏÄßÕæø ØÎÏÎÈáÕÆߺîßGáUÄÞÃí.å 3.å31.03.2011 ÄàÏÄßÏßW ¾ÞX ¥dɵÞøæÎÞøá ØNÄÉdÄ¢ ¼ÈßMߺîÄí ÉâVHÎÈçTÞæ¿ÏÜï.åçµÞ¿ÄßÏßW ÕºîáÈ¿K ¥ÆÞÜJá ºVºîÏßW ÎicØíÅøÞÏß ÕK ¥ÍßÍÞ×µøáæ¿ÏᢠÎxᢠµÈJ ØNVgJßX µàÝßW Îxá ·ÄcLøÎßÜïÞæÄÏÞÃí ¾ÞX ¿ß ØNÄÉdÄ¢ ¼ÈßMߺîÄí.å®æa ÎÞÈØßµ ØNVgÕᢠØÞOJßµ ÌáißÎáGᢠ²KᢠµÃAßæÜ¿áAÞæÄ µ¿áJ ÈßVÌiJßÈá ÕÝBß ¾ÞX ¿ß ØNÄÉdÄJßW ²MáÕºîßGáUÄÞÃí.å¿ß ºVºîÏßW ÄæK ¾ÞX ¿ß Äáµ æµÞ¿áJáÄàVAáK ØwVÍJßW ¦ÕÜÞÄßAÞøæa ÉßÄÞÕßæa çÉVAí ¾ÞX ®ÝáÄßæµÞ¿áJßGáU ÄàùÞÇÞø¢ Äßøßæµ ®ÝáÄßJøÃæÎKᢠÇÞøÃÏâIÞÏßøáKÄÞÃí.å¨ çµTßæÜ ¦ÕÜÞÄßAÞøÈáÎÞÏß ®ÈßAí ÏÞæÄÞøß¿ÉÞ¿áÎßÜï.å¿ßÏÞæa ÉßÄÞÕáÎÞÏß Crl.R.P.2343/11 - : 19 :- È¿JßÏ ØÞOJßµ §¿ÉÞ¿ßW ®æa ÕØñá ÄàùÞÏß ®ÝáÄßæµÞ¿áJᢠ¨¿áæºAáµZ ÈÜíµßÏáÎÞÃí ¾ÞX Äáµ ÕÞBßÏÄí.å¿ß §¿ÉÞ¿á ÄàøáçOÞZ ¿ß ÕØñá Äßøßæµ ®ÝáÄßJøÞæÎK ÕcÕØíÅÏáIÞÏßøáKÄáÎÞÃí.å®KÞW ¨ çµTßW ¿ßÏÞX µfßÏÜïÞæÄ ÕøáK ØÞÙºøcJßW ¿ß ÈßÌtÈ ®ÝáÄß çºVAÞæÄ ÕKÄÞÃí.å 4.å®æa ÉâVHÎÈTßÜïÞæÄ ØNVgJÞW ®ÝáÄßÏ ØNÄÉdÄ¢ ÈßÏÎdɵÞø¢ ÈßÜÈßWAáKÄÜï.妵ÏÞW ¾ÞX ¦Æc·Áá ÈÜíµÞæÄ ¿ß ØNÄÉdÄJßæa ¥¿ßØíÅÞÈJßÜáIÞÏ çµÞ¿Äß ÕßÇß ¥ØíÅßøæM¿áJß µßGáKÄßÈᢠÎxáÎÞÏß ÌÙá: çµÞGÏ¢ ¼ßÜïÞ æØfX çµÞ¿ÄßÏßW ¾ÞX C.A.221/2011 ¦Ïß ÙV¼í¼ß çÌÞÇßMߺîßGáUÄᢠ¦ÏÄí ËÏÜßW Øbàµøߺîí ®ÄãµfßAí çÈÞGàØí ©JøÕÞÏßGáUÄáÎÞÃí. 5. ¨ ØÞÙºøcJßW ®ÈßæAÄßæø ÌÙá: çµÞ¿Äß ÉáùæM¿áÕߺîßGáU ¥ùØíxí ÕÞùIí ÉßXÕÜߺîáµßGÞX ®ÈßAÕµÞÖÎáIí.å¥ÜïÞæÏCßW ¿ß çµTí Øá·ÎÎÞÏß È¿JßæAÞIáçÉÞµÞX ®ÈßAí ÌáißÎáGáIÞµáKÄᢠ¦ÏÄí çµTßæa ÈcÞÏÉâVHÎÞÏ ÄàVMßÈí Ä¿TÎÞµáKÄᢠ®ÈßAí ¥ÉøßÙÞøcÎÞÏ µ×í¿È×í¿JßÈß¿ÏÞµáKÄáÎÞÃí.å 6.åµâ¿ÞæÄ ¿ß çµTí ÄàVAÃæÎKáæICßW ÄæK ¦ÏÄßÈí ®ÈßAí 31.12.2011 Õæø ØÎÏÕáÎáIí.å¥ÄßÈß¿ÏßæÜ ²øá ·Áá ÕàÝíº ÕøáJßÏÄáÎâÜ¢ ®ÈßæAÄßæø ÕÞùIáJøÕáIÞµáKÄí ÈàÄßÉâVÕîÎÜï. 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