Saji Yohannan Antony v. State of Kerala and Vargheese

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 21[ST] DAY OF MAY 2024 / 31ST VAISAKHA, 1946 CRL.L.P. NO. 226 OF 2023** **AGAINST THE JUDGMENT DATED 17.08.2018 IN CC NO.820 OF 2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM CRIME NO.671/2007 OF Kundara Police Station, Kollam** ## **PETITIONER/COMPLAINANT:** **SAJI YOHANNAN AGED 58 YEARS ANTONY VILASAM THEKKEMURI, EAST KALLADA P.O., NOW RESIDING AT LAKE VIEW, KOTTAPPURAM, MULAVANA P.O., KOLLAM, PIN – 691503. BY ADVS. SAIJO HASSAN P.K.ANTONY AATHIRA SUNNY NAZRIN HALLAJ RENJINI M. RENJITH ROSE MATHEW K.N.MUHAMMED THANVEER LAKSHMINARAYAN.R AKHILESH S. ABHIRAMI DINESH BENOJ C AUGUSTIN RAFEEK. V.K. U.M.HASSAN P.PARVATHY** ## **RESPONDENTS/STATE & ACCUSED:** - **1 STATE OF KERALA HIGH COURT OF KERALA ERNAKULAM, PIN – 682031.** **2 VARGHESE AGED 68 YEARS KOCHUTHUNDIL VEEDU, ELAMBALLIMURI, PALLIKKAL VILLAGE, ADOOR TALUK,PATHANAMTHITTA– 690504.** 2 Crl.L.P.No.226 of 2023 **BY ADVS. R1 BY SEENA C., PUBLIC PROSECUTOR R2 BY TONY GEORGE KANNANTHANAM R2 BY THOMAS GEORGE** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR FINAL HEARING ON 08.04.2024, THE COURT ON 21.05.2024 DELIVERED THE FOLLOWING:** 3 Crl.L.P.No.226 of 2023 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.L.P.No.226 of 2023** **----------------------------------------------------------Dated this the 21[st] day of May, 2024** ## **O R D E R** ## Crl.M.A.No.1 of 2022 in Crl.L.P.No.226 of 2023 This is an application filed under Section 5 of the Limitation Act, 1963. Delay of 554 days in filing the Criminal Leave Petition is sought to be condoned. The petitioner contends, in terms of the averments in the affidavit and also in the additional affidavit filed in support of the petition as follows: The petition for leave ought to have been filed on or before 17.11.2018 for, the impugned judgment was pronounced on 18.09.2018. Unprecedented floods started in Kerala on 16.08.2018. That caused closure of the petitioner’s shop and fraught with untold miseries. On account of the financial loss and mental depression, he could not contact the lawyer. Subsequently, COVID-19 pandemic gripped the country. On account of such _vis major_ elements, the petitioner was unable to file the petition for leave in time. Therefore, there is sufficient reason for condoning the delay. 4 Crl.L.P.No.226 of 2023 2. The 2[nd] respondent filed an objection. He contends that even the application for a certified copy of the impugned judgment was submitted belatedly. That delay, which is from 18.11.2018 till 14.06.2019 and also the delay in receiving the certified copy, which was made ready, are also not explained. The reasons stated for the delay are vague, false and quite unsatisfactory. The petition is accordingly sought to be dismissed. 3. Heard the learned counsel for the petitioner, the learned counsel for the 2nd respondent and the learned Public Prosecutor. 4. The petition was submitted before this Court on 17.02.2022. The period from 15.03.2020 till filing of the petition gets excluded from the period of limitation in view of decision of the Apex Court in **In Re:Cognizance for Extension of Limitation [(2022) 3 SCC 117]** . Excluding that period, is the delay stated by the petitioner. 5. True, there occurred an unprecedented flood in Kerala in August, 2018. However, its effect did not last for 5 Crl.L.P.No.226 of 2023 years together. The case of the petitioner is that on account of the devastating flood, his business had to be closed and consequently he sustained huge loss and was put to a state of mental distress. The 2[nd] respondent denied the said assertions. Despite such denial, no evidence or material has been produced by the petitioner to substantiate his contention. When the delay is inordinate, mere averment in the affidavit unsupported by any evidence or material is insufficient, especially when such assertions are stoutly denied by the opposite party. 6. In **Collector, Land Acquisition v. Katiji [(1987)** **2 SCC 107]** , in the context of Section 5 of the Limitation Act, 1963, the Apex Court held that, the expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, that being the lifepurpose for the existence of the institution of Courts. 7. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while 6 Crl.L.P.No.226 of 2023 summarising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, there is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. Para.21 of the judgment reads thus; - “21. From the aforesaid authorities the principles that can broadly be culled out are: - 21.1 There should be a liberal, pragmatic, justiceoriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. - 21.2 The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 7 Crl.L.P.No.226 of 2023 21.3 Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4 No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5 Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7 The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8 There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of 8 Crl.L.P.No.226 of 2023 both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10 If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11 It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12 The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13 The State or a public body or an entity representing a collective cause should be given some acceptable latitude.” [underlines supplied] ## 8. In **Rafeek and another v. K. Kamarudeen and** **another [2021 (4) KHC 34]** a Division Bench of this Court held that, though the expression ‘sufficient cause’ employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex Court in **Katiji [(1987) 2 SCC 107]** , the concept of liberal 9 Crl.L.P.No.226 of 2023 approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in **Esha Bhattacharjee [(2013) 12 SCC 649]** . Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. 9. The petitioner seeks leave to assail a judgment of acquittal. The impugned judgment was rendered on the premise that there was absolutely no evidence to prove deception in the matter of execution of the agreement for sale. Evidence to prove commission of the offence of cheating and misappropriation of criminal breach of trust was found lacking. When such findings which resulted in the acquittal of the 2[nd] respondent are sought to be assailed by the petitioner, and the delay is inordinate, the question of condonation of delay requires a strict approach. The reasons stated for condonation of the delay are not substantiated. The flood that occurred in August, 2018, which lasted for a few days cannot, 10 Crl.L.P.No.226 of 2023 in the facts and circumstances of this case, be the reason to condone the delay of 554 days. Hence, this petition is dismissed. Crl.L.P.No.226 of 2023 Crl.M.A.No.1 of 2022, which is a petition for condonation of delay, is dismissed. Consequently this petition for leave is also dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr/pv 11 Crl.L.P.No.226 of 2023 ## **APPENDIX OF CRL.L.P. 226/2023** **PETITIONER ANNEXURES Annexure1 CERTIFIED COPY OF JUDGMENT IN CC 820/2008 ON THE FILE OF JFCM - I, KOLLAM**