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Ramavatar Sharma Vs. Sk. Rahemad Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1980CriLJ306
AppellantRamavatar Sharma
RespondentSk. Rahemad Ali and anr.
Cases ReferredBhakti Bhushan Mondal v. Khagendra K. Bandopadya
Excerpt:
......it has been laid down there that a litigant would be entitled to get benefit of section 5 of the limitation act if, (a) the advice was given by a skilled [or competent person, (b) the lawyer who gave the opinion exercised reasonable care, (c) the view taken by the lawyer was such as could have been [entertained by a competent person exercising reasonable skill, and (d) there was no negligence or want of reasonable skill on the part of the (lawyer concerned who gave the advice, the petitioner must establish that he was actuated in this matter by good faith, that is, honestly or that any or all of the circumstances enumerated in the aforesaid case applied to his case. the conduct of the petitioner was clearly contrary to the plain language of the sections of the cr. in absence of such..........that an appeal under section 454(1), cr.p.c. can be filed only after the final disposal of the leave application the delay caused by erroneous thinking based upon wrong legal advice should constitute sufficient cause,3. to understand the first contention a few antecedent facts need be stated. the petitioner filed a complaint case (case no. icc 224 of 1978) against the opposite parties alleging that the opposite parties had committed theft of a truck bearing no. oru 9097 which the petitioner had obtained on hire purchase basis having been financed by the cuttack branch of syndicate bank. the registration of the truck was made in his name, road permit was also issued in his name and the vehicle also was insured in his name. the accused persons subsequently approached the complainant.....
Judgment:
ORDER

S.K. Ray, C.J.

1. This revision is directed against the order dated 17-9-1979 passed by the Sessions Judge, Cuttack dismissing the appeal of the petitioner under Section 454, Cr. P. C. registered as Criminal Appeal No. 228 of 1979 on the ground of limitation. A petition under Section 5 of the Limitation Act was also filed along with the Criminal Appeal, but the grounds urged therein for condonation of delay did not appeal to the Sessions Judge as sufficient cause and, accordingly, he rejected it, and also the appeal as barred by time,

2. Mr. Palit, the learned Counsel for the petitioner, urges two grounds. The first ground is that the cause of action for filing an appeal under Section 454(1), Cr. P. C, accrued on 27-7-1979 when Criminal Misc. Case No. 253 of 1979 filed in this Court for leave to appeal against the order of acquittal was dismissed. Computing the period of 30 days from that data the appeal was in time. The second ground is that as the petitioner had erroneously thought that an appeal under Section 454(1), Cr.P.C. can be filed only after the final disposal of the leave application the delay caused by erroneous thinking based upon wrong legal advice should constitute sufficient cause,

3. To understand the first contention a few antecedent facts need be stated. The petitioner filed a complaint case (Case No. ICC 224 of 1978) against the opposite parties alleging that the opposite parties had committed theft of a truck bearing No. ORU 9097 which the petitioner had obtained on hire purchase basis having been financed by the Cuttack Branch of Syndicate Bank. The registration of the truck was made in his name, road permit was also issued in his name and the vehicle also was insured in his name. The accused persons subsequently approached the complainant for purchasing the truck and, accordingly, on 14-5-75 an agreement was executed between the petitioner and opposite party No. 2 for sale of the truck. The consideration was fixed at Rs. 1,44,000/- out of which Rs. 25,000/- was to be paid initially and the balance amount of Rs. 1,19,000/- was to be paid in 35 equal monthly instalments. On payment of Rs. 25,000/- the truck was delivered to the opposite parties for plying. The opposite parties paid 20 instalments of Rs. 3,400/- each and defaulted in paying the balance amount of Rs. 70.000/-, So on 20-4-T8 the petitioner took physical possession of the vehicle, but on 22-4-78 the accused persons came and removed the truck despite his protests.

The defence plea was a total denial of the occurrence. The opposite parties further pleaded that they had purchased the truck by paying Rs. 25,000/- initially and an amount of Rs. 1,14,800/- subsequently to the petitioner towards the full price of the truck. The vehicle was all along in their custody till the same was seized by the police from them on 29-4-79.

4. The trial Court by its judgment dated 9-5-79 acquitted the opposite parties on finding that the allegation of removal of the truck by the accursed persons from the complainant's custody is not believable and that the evidence that the accused defaulted in paying Rs. 70.000/- cannot be accepted. In the same judgment, after recording an order of acquittal, the trial Court proceeded to pass orders regarding disposal of the truck in the following words : - '...The seized truck is to be returned to the accused, after the appeal period is over if no appeal is preferred.'

5. Being aggrieved by the order of acquittal the petitioner came to this Court for leave to appeal in Criminal Misc. Case No. 253 of 1979 which was dismissed on 27-7-1979. The appeal before the Sessions Judge under Section 454(1), Cr. P, C. was filed on 1-8-19T9.

6. The first contention of Mr. Palit, the learned Counsel for the petitioner, is that since the appeal period is to be computed from 27-7-79 when the leave application was dismissed, the appeal to the Sessions Judge having been filed on 1-8-79 is in time. He argues that right to appeal accrues to the petitioner only after the leave application is finally disposed of. In this connection reliance is placed on Sub-section (4) of Section 452 and Sub-sections (1) and (3) of Section 454, Cr. P. C.

This contention is without any substance whatsoever. Sub-section (1) of Section 452 enables the Criminal Court at the conclusion of trial to pass an order regarding disposal of property. Sub-section (4) thereof provides that the order of disposal of the property shall not be carried out for 2 months, or when an appeal is preferred, until such appeal has been disposed of. The expression 'when an appeal is presented' in this sub-section may include either an appeal when presented from the disposal order under Section 454(1) or an appeal when presented from the main order of conviction or acquittal as the case may be, because the disposal order may be modified, altered or annulled not only by the Court entertaining an appeal under Section 454(1) but also by the Court of Appeal dealing with the case in which the disposal order is passed. The only purpose of Sub-section (4) of Section 452 is to stay carrying out of the disposal order until the appeal from it under Section 454(1) is finally disposed of or until the appeal from the order of conviction or of acquittal is disposed of. It serves no other purpose. It is true that in a case ending in acquittal in which disposal order is passed under Section 452(1), the said order can be interfered with by the Court to which appeal ordinarily lies from judgment of conviction of the Court passing the disposal order (which is the Court of Session in this case) or by High Court, if appeal had been preferred to it from the order of acquittal, under Section 454(3), Cr. P. C. Though in certain contingencies the power referred to in Section 454(2) is exercisable by two different forums, it does not suspend running of time for presenting an appeal Under Section 454(1), Cr. P. C.

Further, the misconception of Mr. Palit's argument is on account of equating an application for leave to appeal with an appeal envisaged in Sub-section (4) of Section 452 or Sub-section (1) or Sub-section (3) of Section 454. Section 378, Sub-section (4), Cr. P. C, is the provision regarding the circumstances in which an appeal from an order of acquittal may be presented, This sub-section states:

If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.

It is crystal clear that appeal can only be presented after leave is obtained from the High Court on the basis of an application made to it for that purpose only. Therefore, presentation of an application cannot be regarded as tantamount to presentation of an appeal. Article 115 (b) (ii) provides a period of 30 days for an appeal from the order of disposal of property by the Magistrate. The heading of col. 3 of that article is 'Time from which period begins to run.' Therefore, the 30 days' limitation is to run from the date of the order which in this case is 9-5-79. Once the period of limitation begins to run there is nothing in the Limitation Act to suspend such running and the aggrieved complainant is bound to file an appeal within 30 days from the date of the order of the Magistrate. If this article is compared with Article 58 and Article 113 it will be seen that in those latter two articles the time from which the period will begin is, in one case 'when the right to sue first accrues' and hi the other case 'when the right to sue accrues.' The difference in language is indicative of the fact that the period for filing an appeal from the order of disposal of the property begins to run from the date of the order and is not to be postponed till after the leave application is disposed of when, according to Mr. Palit, right to prefer appeal under Section 454(1), Cr. P. C. accrues to the petitioner. There can be no doubt that Criminal Appeal No. 228 of 1979 which was filed before the Sessions Judge, Cuttack on 1-8-79 was beyond time.

7. It is next contended that the petitioner postponed filing of the Criminal Appeal under Section 454(1), Cr. P. C. awaiting the result of his application for leave to appeal presented before this Court under a mistaken notion that the time for filing the appeal would run after final disposal of the leave application. This impression was on account of the mistaken advice given by a lawyer and that would constitute sufficient cause within the meaning of Section 5 of the Limitation Act. It is true, as laid down in certain decisions, that mistaken advice given by a legal practitioner may, in circumstances of a particular case, give rise to sufficient cause within the meaning of Section 5 of the Limitation Act, though there is certainly no general doctrine which saves the parties from the results of wrong advice (see the case of Rajendra Bahadur Singh v. Rajeshwar Bali AIR 1937 PC 276), The circumstances in which the mistake of a lawyer can constitute sufficient cause have been laid down in the case of Bhakti Bhushan Mondal v. Khagendra K. Bandopadya : AIR1968Cal69 . It has been laid down there that a litigant would be entitled to get benefit of Section 5 of the Limitation Act if, (a) the advice was given by a skilled [or competent person, (b) the lawyer who gave the opinion exercised reasonable care, (c) the view taken by the lawyer was such as could have been [entertained by a competent person exercising reasonable skill, and (d) there was no negligence or want of reasonable skill on the part of the (lawyer concerned who gave the advice, The petitioner must establish that he was actuated in this matter by good faith, that is, honestly or that any or all of the circumstances enumerated in the aforesaid case applied to his case. The conduct of the petitioner was clearly contrary to the plain language of the sections of the Cr. P. C. referred to above and there is no disclosure of the name of the lawyer who gave that advice to him in his petition under IS. 5 of the Limitation Act, The only ground taken therein is that time runs only after the application for leave to appeal is disposed of by the High Court and not before. In absence of such disclosure as to how the mistaken belief arose in the mind of the petitioner, it cannot be postulated that his action was governed by good faith. In the circumstances, in my opinion, the learned Sessions Judge had no option than to dismiss the appeal presented before him as barred by time,

8. There is, therefore, no merit in this revision application which is, accordingly, dismissed.


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