ORAL ORDER

ORDER IN CRIMINAL MISC.APPLICATION

1. Heard the learned advocates appearing for the respective parties.

2. By way of this application, the applicant has prayed for condonation of delay of 74 days occurred in preferring the application.

3. Learned advocate for the applicant submits that applicant is in jail and he is suffering from the sentence under Section 138 of the Negotiable Instruments Act and further submitted that because of paucity of fund, applicant could not take legal advice and that had let to delay of 74 days in filing the revision application.

4. Learned APP for the respondent–State submits that the delay in filing the application is not sufficiently explained and therefore, the present application may be rejected.

5. In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others reported in AIR 1987 SC 1353, it has been observed as under:-

“3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. 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 life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”

6. In view of the principles laid down in the above-

referred decision and considering the averments made in the application and as the delay has been sufficiently explained, the delay of 74 days occurred in filing the application deserves to be condoned and is hereby condoned.

7. Accordingly, the present application is allowed. Let the criminal revision application be listed today.

ORDER IN CRIMINAL REVISION APPLICATION RULE. Learned advocates waive service of Rule on behalf of the State.

1. By way of this application, the applicant –

revisionist challenges the judgment of conviction and sentence dated 02.02.2023 passed by the learned 3rd Judicial Magistrate First Class, Bharuch in Criminal Case No. 5013 of 2022 under Section 138 of the Negotiable Instruments Act, 1881. The above sentence was challenged by way of an Appeal and the same was confirmed on 23.01.2024 by the learned Sessions Judge, Bharuch in Criminal Appeal No.100 of 2023.

2. Learned advocate Ms. Bela A. Prajapati for the applicant states that the revision has been raised against the concurrent finding