Radheshyam Gograj Kejriwal v. Park Organics Ltd & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 12TH DAY OF OCTOBER 2012/20TH ASWINA 1934 ## CRL.A.No. 2159 of 2008 -------------------------- CRLP.1495/2008 COMMON JUDGMENT IN CC.Nos.681 & 682/2005 of J.M.F.C., KODUNGALLUR ## APPELLANT/COMPLAINANT: -----------------------RADHESHYAM GOGRAJ KEJRIWAL, S/O.GOGRAJ KEJRIWAL, PROPRIETOR, M/S. PRATIK ENTERPRISES, A/51, SHANTI APARTMENTS, CHRKOP VILLAGE, KANDIVILI, MUMBAI, MAHARASHTRA, (A-1201, RAJ RESIDENCY I, MAHAVIR NAGAR, KANDIVILI (WEST), MUMBAI - 400 067. BY ADV. SRI.M.P.MADHAVANKUTTY ## RESPONDENTS/ACCUSED: ---------------------1. M/S.PARK ORGANICS LIMITED, REPRESENTED BY DIRECTOR,BHUPATRAI GANDHI, A/302. GURU NANAK BUILDING, SHANKAR LANE, KANDIVILI(WEST) MUMBAI-400067(PRESENT ADDRESS:M/S.PARK ORGANICS LTD.,REP.BY DIRECTOR, BHPATRAI GANDHI,12, NILANJANA, GROUND FLOOR, MARVE ROAD, MALAD (WEST), MUMBAI - 400064, MAHARASHTRA) 2. BHUPATRAI GANDHI, S/O. MAGANLAL H. GANDHI, 1001, GREAT EASTERN HEIGHTS, MARVE ROAD, MALAD (WEST), MUMBAI. 3. MRS. PRAFULLA B. GANDHI, DIRECTOR, M/S. PARK ORGANICS LIMITED, W/O. BHUPATRAI M. GANDHI, 1001, GREAT EASTERN HEIGHTS, MARVE ROAD, MALAD (WEST) MUMBAI. 4. MISS. ALPA B. GANDHI, DIRECTOR, M/S. PARK ORGANICS LIMITED, D/O. BHUPATRAI M. GANDHI, 1001, GREAT EASTERN HEIGHTS, MARVE ROAD, MALAD (WEST) MUMBAI. CRL.A.No. 2159 of 2008 5. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.H.HANIL KUMAR - FOR R1 TO 4 BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-10-2012, ALONG WITH CRA. 2160/2008, CRA. 2161/2008 & CRA. 2162/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A.No. 2159 of 2008 ## APPENDIX PETITIONER'S EXHIBITS : NIL. RESPONDENTS' EXHIBITS: ANNEXURE R1(a) : COPY OF THE DEATH CERTIFICATE ISSUED BY THE MUNICIPAL CORPORATION OF GREATER MUMBAI DATED 26/07/2012. True copy P.A. to Judge ## **V.K.MOHANAN, J.** ## **------------------------------------------------------------Crl.M.Appln.Nos.6148, 7194, 6023, 7228, 6147, 7169, 6026 & 7249 of 2012 & Crl.A.Nos.2159, 2160, 2161 & 2162 of 2008 -------------------------------------------------------------Dated this the 12[th] day of October, 2012** ## **JUDGMENT** As the parties to the above petitions are same and the relief sought in these petitions are also identical and the facts and circumstances involved are also identical, these petitions are heard together and being disposed of by this common judgment. 2. All the above appeals are instituted at the instance of the original complainant, aggrieved by two common judgment dated 26/07/2008 respectively covered by C.C.Nos.681 of 2005 and 682 of 2005 as well as C.C.Nos.643 of 2005 and 623 of 2005. During the pendency of the above appeals, the appellant died. Now on behalf of the wife and sons of the deceased appellant, the counsel for the expired appellant, preferred these Crl.A.Nos.2159, 2160, 2161 & 2162/2008 : 2 : petitions seeking leave of this Court to implead the petitioners as the appellants and also for impleading in the above appeals. 3. Against the above petitions, the respondent have filed statement of objection dated 05/10/2012 and they have produced Annexure-R1(a) death certificate with respect to the original appellant which shows that the original appellant died on 14/04/2009 in Bombay. Both the petitions in the above four appeals are filed under Section 482 of Cr.P.C. In paragraph 3 of the above petition it is stated that “Unfortunately the appellant has expired and for prosecuting the above appeal, the legal heirs of late Radheshyam Gograj Kejriwal have to be impleaded as additional appellants in the above appeal.” The petitioners could not promptly approached before this Court after the death of the appellant because of certain unforeseen circumstances arose there due to a communication gap between them and the counsel for the appellant. In paragraph 4 it is further stated that the Crl.A.Nos.2159, 2160, 2161 & 2162/2008 : 3 : first petitioner who is the wife of the original appellant and petitioners 2 to 4 are his sons. 4. Thus, when the notice sent on 17/01/2009 with hearing date 27/02/2009 through Registrar of Maharashtra at Mumbai, the same was returned unserved and accordingly the Registry has posted the matter before the bench and this Court admitted the same and again ordered notice and except on R1 notice was served on R2 to R4 for whom Adv.Sri.M.H.Hanil Kumar is appearing. Thus, when the appeals are posted for hearing, the counsel for the contesting respondents pointed out that the original appellant is no more. Thereafter the counsel for the expired appellant sought time and finally he filed two separate applications in each appeal with the above prayers. 5. I have heard Adv.Sri.Gokul Das.V.V.H., who appeared for the petitioners and Adv.Sri.M.H.Hanil Kumar, counsel for the respondent. Crl.A.Nos.2159, 2160, 2161 & 2162/2008 : 4 : 6. In the objection statement dated 05/10/2012 filed by the contesting respondent, as I indicated earlier the respondent by filing Annexure-R1(a) pointed out the exact date of death of the original appellant and it is also pointed out that only when the respondents pointed out regarding the factum of death of the original appellant, the present petitions are filed with delay of 3 years. In the above objection it is stated that there is no proper explanation from the side of the petitioners for the inordinate delay of three years for filing the above interlocutory applications. It is also stated that the petitioners have not produced any document to show that they are the legal heirs of the original appellant. Thus the respondent seriously opposed the contention of the petitioners that they are the legal heirs of the original appellant. According to the learned counsel for the respondent, if the petitioners are the legal heirs of the original appellant they would have taken step to get impleaded in the appeal within the proper time. Hence Crl.A.Nos.2159, 2160, 2161 & 2162/2008 : 5 : there is an inordinate delay of three years and latches from the part of the appellants in approaching this Court. Therefore the counsel for the respondent stoutly opposed the relief sought for in these petitions. 7. The counsel for the petitioners on the strength of the decision reported in **Ismail** vs. **Samuel** [1995(1) KLT page 1], **Sanal Kumar** Vs. **Rajeev Kumar** [2004(1) KLT 689] and **Khedu Mohton and others** Vs. **State of Bihar** [AIR 1971 SC 66] submitted that as no death of the accused involved there is no question of abatement of the appeal and it is the further submission, especially in the light of the above decisions, the appeal has to be disposed by this Court on merit. 8. I have carefully considered the rival arguments advanced by the learned counsel for the petitioner and the respondent. I have also gone through the petitions filed on behalf of the so-called legal heirs of the original appellant and the objection filed by the respondent and the document produced thereon. Crl.A.Nos.2159, 2160, 2161 & 2162/2008 : 6 : 9. Neither the counsel for the respondent nor in the statement filed by them, they have raised a contention that the appeals are abated due to the death of the original appellant. The learned counsel for the petitioners submitted that, if there is no abatement of the appeals, appeals have to be disposed in accordance with its merit and the delay will not stand in the way in disposing of the appeals on merit. Since all the authorities relied on by the learned counsel for the petitioner are based upon the question whether the appeals would be abated due to the death of appellants, the above authorities are not helpful for the petitioners since no such contention is taken by the respondent in these appeals and the respondent-accused is alive and actually the original appellant was died. But it is relevant to note that in **Ismail** vs. **Samuel** [1995(1)KLT], particularly in paragraph '6', this Court has held, “This is a case where the appeal could not be prosecuted by the appellant he having died Crl.A.Nos.2159, 2160, 2161 & 2162/2008 : 7 : during the pendency of the appeals. In such circumstances, the appeals do not abate and it is open to this court to permit any person interested to prosecute the appeals. Petitioners are very much interested in the outcome of the litigation, they being members of the Co-operative Bank. Permitting them to continue the appeals would not amount to substitution of legal representatives of the deceased complainant. For a proper determination of the appeals, the presence of someone who can place all the relevant facts before this Court is necessary. Petitioners being members of the Society are competent to place the relevant facts so that no aspect of the matter escapes the notice of this Court. In these circumstances, the request of petitioners to permit them to continue the appeals has to be allowed.” [Emphasis supplied] According to me, though the appeals are not abated by virtue of Section 394 of Cr.P.C. due to the death of the appellant, there is no legal bar in dismissing such appeals if the same are not presented by same interested person as held in the above decision. Therefore the question that Crl.A.Nos.2159, 2160, 2161 & 2162/2008 : 8 : emerges for consideration is whether present petitions are maintainable and whether the petitioners therein are to get the relief as sought for. 10. In the present case, in the above two petitions filed in the above appeals, the inordinate delay of three years are not explained. To show the death of the appellant, the petitioners have produced no document and there is no convincing explanation for the inordinate delay of three years that occurred in approaching this Court. As rightly pointed out by the counsel for the respondent, no document is produced by the petitioners to substantiate their claim that they are the legal heirs of the original appellant. So I am not satisfied with the reasons stated either in the impleading petition or in the petition seeking leave to allow those prayers. 11. Moreover it is relevant to note that as rightly pointed out by the respondent and his counsel in their objection, it was the respondent who pointed out the factum of death of the original appellant to this Court, Crl.A.Nos.2159, 2160, 2161 & 2162/2008 : 9 : when the above appeals came up for admission. Till that time, the counsel for the appellant was not aware of the above fact. In other words, the counsel was not informed about the death of the original appellant by the so-called legal heirs. I am unable to understand why the so-called legal heirs failed to file an affidavit in support of the relief sought for in these petitions. No petition to condone the delay supported by the affidavits of the so-called legal heirs are also filed. It is also relevant to note that though in the cause title of the petitions, the names of the petitioners, who are claimed to have the legal heirs of the original appellant, are shown, the petitions are not verified by the counsel for the petitioners and the name of the counsel has also not shown. So the facts stated in the above petitions are not verified either by the petitioners or by their counsel. Due to the above defects in those petitions, this Court is not in a position to hold that the petitioners are the legal heirs of the original appellant. Therefore, on such petitions, no relief as prayed for can Crl.A.Nos.2159, 2160, 2161 & 2162/2008 **==> picture [26 x 9] intentionally omitted <==** be allowed particularly in the light of various defects pointed out earlier. In the light of the above facts and circumstances, according to me, the above petitions due to the unexplained delay of three years are not maintainable and the petitioners are not entitled to get the relief as sought for in these petitions and accordingly the same are dismissed. Consequently, for the nonprosecution of the above appeals, the same also stand dismissed. ## **V.K.MOHANAN, JUDGE** skj