- (1.) THIS is an application for condonation of 223 days delay in filing the application for leave to file appeal.
(2.) A criminal complaint was filed by the applicant in the court of Metropolitan Magistrate under Section 138 of the Negotiable Instruments Act. The said complaint was dismissed under Section 256 of the Cr.P.C. Since the complainant and his Advocate remained absent on three occasions and therefore, by order dated 30th August, 2008, the complaint was dismissed. The present application for leave to file appeal has been filed after almost 223 days. The only ground which is given in the application for condonation of delay is that papers and proceedings in the complaint were misplaced/lost by the employee who was handling the matter. It is further submitted that the said employee left the organisation of the applicant without giving any intimation and therefore, the applicant had to trace the papers with great difficulty and that was the reason why the delay was caused in filing the application. Counsel for respondent no.1, on the other hand, vehemently opposed the said application for condonation of delay. He has filed his affidavit-in-reply. It is stated that the complaint was filed by the Director of the company Mr.Nilesh Shah. The verification of Nilesh Shah was recorded by the Magistrate and the said Director was looking after the matter and not any other employee as alleged in the application. It is submitted that the name of the employee is not mentioned in the application. It is stated that the criminal appeal is also preferred by the same Director. The learned Counsel also invited my attention to the Roznama. He submitted that the summons was issued by the learned Magistrate and thereafter for about 215 days, summons was not collected by the complainant or his Advocate. He pointed out that on number of dates, the complainant and his Advocate had remained absent. It was, therefore, submitted that the application for condonation of delay was liable to be dismissed. In my view, there is some substance in the submission made by respondent no.1. It is a settled position in law that once an order of acquittal is passed, right accrues in favour of the accused after the completion of the appeal period and therefore, thereafter, each and every day's delay has to be explained by the complainant. In the present case, the ground for condonation of delay is that the employee of the applicant had mis-placed the papers. No particulars have been mentioned in the said application as to when the applicant became aware of the order of dismissal, when the application was filed for certified copy of the said order. The name of the employee also is not mentioned. It appears that therefore, the false and fictitious grounds have been mentioned in the application for the delay caused in filing the application. Even the Roznama indicates that the applicant was not diligent in pursuing the complaint. Under these circumstances, therefore, in my view, sufficient cause has not been shown by the applicant for condonation of delay.
(3.) APPLICATION for condonation of delay is, therefore, dismissed. Application for leave to appeal does not survive and is disposed of.;