ORDER
K.N. Basha, J.
1. Mrs. G. Thilagavathi, learned Counsel for the petitioner submits that the petitioner has come forward with this petition seeking the relief of condoning the delay of 15 days in filing the Special Leave Petition to prefer the Criminal appeal against the order of acquittal dated 29-7-2005 made in C. C. No. 69 of 2005 on the file of the learned Judicial Magistrate, Arakonam, acquitting the accused for the offence under Section 138 of the Negotiable Instruments Act.
2. It is contended by the learned Counsel for the petitioner that the petitioner is the complainant in the case filed for the offence under Section 138 of the Negotiable Instruments Act in respect of dishonouring the cheque to the tune of Rs. 3,50,000/-. The learned Counsel for the petitioner further submitted that the petitioner challenged the order of acquittal by preferring the appeal on 29-9-2005 and the same was re-turned on 30-9-2005 on the ground that the petitioner should file a special leave petition. It is submitted that the petitioner represented the appeal on 7-11-2005 with a Special leave Petition in Crl.O.P. No. 31531 of 2005. It is further submitted by the learned Counsel for the petitioner that though the appeal was filed on 29-9-2005, thereafter the appeal was returned for the requirement of filing the Special Leave Petition, the learned Counsel informed the petitioner, and thereafter the petitioner came to Chennai and signed in the papers only on 7 -11 -2005 as the petitioner was suffering from ill-health on account of viral fever and thereafter the learned Counsel was able to represent the papers of Appeal before the Court.
3. The learned Counsel for the petitioner further submits that since the criminal appeal was filed in time within the period of limitation it was bona fidely felt that no condonation for filing the Special Leave Petition was required and accordingly, Criminal Appeal was numbered as Crl. A. No. 897 of 2005 and the Special Leave Petition was numbered as Crl. O.P. No. 31531 of 2005 and leave was granted, appeal was admitted and notice was ordered on 17-11 -2005.
4. The learned Counsel for the petitioner further contended that after service of notice, the respondent/accused has filed Crl. M. P. No. 350 of 2006 for recalling the orders passed in Crl. O.P. No. 31531″ of 2005 and Crl. A. No. 897 of 2005 on the ground that the Special Leave Petition was not filed within the period of limitation. It is brought to the notice of this Court by the learned Counsel for the petitioner, that this Court allowed the petition preferred by the respondent by the order dated 6-3-2006 recalling the orders of admission of the appeal as well as granting of special leave without condoning the delay in filing the same and also gave liberty to the petitioner to file an application under Section 5 of the Limitation Act to condone the delay in preferring the Special Leave Petition.
5. The learned Counsel for the petitioner also pointed out the calculation of days of delay in filing the special leave petition as follows:
CALCULATION OF DAYS IN FILING DELAY
PETITION IN SPECIAL LEAVE PETITIONDelay
Order in C. C. No. 69 of 2005 made on 29-7-2005
Copy Application filed on 29-7-2005 = Nil days
Certified copy of the order made
ready on 24-8-2005
Special Leave Petition ought to have
been filed on or before 24-10-2005
Special Leave Petition filed on 7-11-2005
Total No. of days in delay in August (31 days) 8
Total No. of days in delay in September (30 days) 30
Total No. of days in delay in October (31 days) 31
Total No. of days in delay in November (30 days) 06
__
75
(less) Period of Limitation 60
__
Total No. of days in filing delay petition 15
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6. It is also submitted by the learned Counsel for the petitioner that the appeal was filed on 29-9-2005 and the seal affixed on the appeal petition reflects the corrections from 30th to 29th September and it is stated by the Registry that due to oversight the seal was wrongly affixed as 30-9-2005 instead of 29-9-2005. The learned Counsel for the petitioner contended that the delay in filing the special leave; petition is neither wilful nor wanton but only due to the above said reasons. It is also contended by the learned Counsel for the petitioner that the calculations of the number of days of delay is also correctly made and the petitioner has also given reasonable explanation for the delay in filing the special leave; petition and therefore, in the interest of justice, the delay of 15 days in the filing the special leave petition may be condoned.
7. Per contra, Dr. A. E. Chelliah. learned senior counsel for the respondent vehemently contended that the petitioner has neither given any valid reason nor shown any sufficient cause for condoning the delay and made the following submissions:
(1) The petitioner has not come forward with categorical reason for the delay as the present version of the petitioner is that, he was suffering from viral fever which resulted in delay and earlier version is that he was unaware about filing of special leave petition and filing the delay condonation petition,
(2) A perusal of the case bundle in the Registry shows that that appeal was filed on 30-9-2005 but the dates are. corrected in the seals as 29th instead of 30th.
(3) The appeal was returned on the ground, of not filing the petition for the condonation of delay and the petitioner was directed to file within 10 days and when the same was filed on 7-11-2005 and in the absence of verified petition to condone the delay in representation, 60 days benefit cannot be given and therefore, the delay cannot be only 15 days.
(4) S.R. Number given as 85366 of 2005 is not in existence at all.
(5) When there is no verified petition for condoning the delay in representation, it is to be calculated from 29 -9-2005 to 7-11-2005 and the same comes to 38 days. The petition for special leave is filed only after wake up call from the Registry and therefore, from 24-8-2005 to 7-11-2005 the delay comes to 72 days.
(6) The letter from the Registry dated 23-2-2007 to the respondent counsel discloses that there is no S.R. Number as 85366 of 2005. It is further stated in the communication, that the appeal was filed only on 29-9-2005 but by mistake it was shown as 30-9-2005. These informations furnished by the Registry are not correct and the same raises doubt.
(7) For the first time, after filing the first affidavit dated 11-3-2006, the petitioner has come forward with a new version in his affidavit dated 13-4-2007 that the verified petition was filed for condoning the delay in representation under S.R. No. 48187 of 2005. A perusal and search of the case bundle shows that there is no such verified petition found in the bundle. The non-existence of S.R. No. 85366 of 2005 is also admitted in the communication sent by the Registry to the respondent’s counsel, but it is stated by the Registry that it is a bona fide mistake. This explanation of the Registry is unacceptable.
(8) S.R. Number given to the special leave petition alone should find place in any paper including the cause list and the S.R.’ No. 42744 of 2005 is repeated for the reasons best known to the Registry. The learned senior counsel for the respondent, by making the above said submissions, contended that the petitioner has not shown sufficient cause for condoning the delay and the “interest of Justice” is for both the sides and not for the petitioner alone, and therefore, the petition has to be dismissed as the same is devoid of merits.
8. I have carefully considered the rival contentions put forward by either side and also perused the affidavits and rejoinders filed by the petitioner as well as the respondent and also perused the communication sent from the Registry dated 23-2-2007 to the counsel on record for the respondent and other materials available on record including the earlier order passed by this Court dated 6-3-2000 recalling the orders of granting special leave and admission of appeal on the ground of filing the same without condone delay petition,
9. Before proceeding to consider the merits of the case in respect of condoning the delay in filing the special leave petition, let me now consider the legal position settled by the decisions of the Hon’ble Supreme Court in respect of condonation of delay.
9.1. The Hon’ble Supreme Court has held in Collector, Land Acquisition, Anantnag and Anr. v. V. Katiji as follows,
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 sub-serves 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 realised 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 justice 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 legalise injustice on technical ground but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal.
9.2. The Hon’ble Apex Court has also held in N. Balakrishnan v. M. Krishnamurthy as follows:
9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory,
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor.
9.3. In yet another decision the Hon’ble Apex Court Ram Nath Sao Alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors. , Para 11 as follows:
In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a strait-jacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps, But one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose Sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hyper-technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.
10. Now let me consider the question involved in this matter, viz., whether the petitioner has shown sufficient cause for condoning the delay in filing the special leave petition by keeping in mind, the well settled principle of law laid down by the Hon’ble Apex Court in respect of condonation of delay.
11. In this matter, the undisputed fact remains that the appeal was preferred by the petitioner within the stipulated time and there is no delay in filing the appeal. It is pertinent to note that the Registry returned the records of appeal as the Special Leave Petition was not filed and thereafter, in compliance of the return, the petitioner said to have represented the appeal along with special leave petition on 7-11-2005. It is also contended that while representing the appeal along with special leave petition on 7-11 -2005, there is a delay of 15 days in filing the petition and as the appeal was preferred within the period of limitation , it was bona fidely felt that no condone delay petition was required to be filed together with the special leave petition and ultimately the special leave petition was numbered as Crl.O.P. No- 31531 of 2005 and the appeal was numbered as Cri. A. No- 897 of 2005 and thereafter the special leave was granted and the appeal was also admitted by this Court and notice was ordered to the respondent on 17-11 -2009, Thereafter, the respondent filed a petition in Cri. MR No. 390 of 2006 against the Cri. O.P. No. 31831 of 2005 {granting special leave) and Cri. A. No. 897 of 2005 (admitting the appeal) to recall the orders passed by this Court granting leave and admission of the appeal on 17-11-2005. This Court by the order dated 06-3-2006 allowed the petition filed by the respondent and recalled the orders granting special leave in Cri. O.P. No. 31531 of 2005 and order of admission passed in Cri. A. No. 897 of 2005 and the petitioner was given the opportunity to file an application under Section 5 of the Limitation Act to condone the delay in preferring the petition seeking special leave as against the order of acquittal.
12. Thereafter, according to the petitioner, he was informed by his Advocate about the requirement of filing a special leave petition and on receipt of information he was able to come to Chennai only on 7-11-2005 as he was suffering from viral fever and thereafter signed the papers. Therefore, it is contended by the learned Counsel for the petitioner that there was a delay of 15 days in filing the special leave petition due to the above circumstances and the delay is neither wilful nor wanton.
13. The rival contention put forward by the learned senior counsel for the respondent is that there was a delay of 72 days in filing the special leave petition and not 15 days as contended by the petitioner. I am unable to accept such contention. The calculation of the petitioner mentioned here-under. discloses that there is a delay of only 15 days:
CALCULATION OF DAYS IN FILING DELAY PETITION IN
SPECIAL LEAVE PETITION
Delay
Order in C.C. No. 69 of 2005
made on 29 07-2005
Copy Application filed on 29-07-2005 = Nil days
Certified copy of the order 24-08-2005
made ready on
Special Leave Petition ought to
have been filed on or before 24-10-2005Special Leave Petition filed on 07 11 -2005
Total No. of days in delay in August (31 days) 08
Total No. of days in delay in September (30 days) 30
Total No. of days in delay in October (31 days) 31
Total No. of days in delay in November (30 days) 06
—-
75
(less) Period of Limitation 60
Total No. of days in filing delay petition 15
I am unable to see any mistake or defect in the above said calculation of computing the number of days delay in filing the special leave petition.
14. According to the learned senior counsel for the respondent, as the appeal papers were returned on 30-9-2005 for filing the condone delay petition for preferring the special leave petition, the petitioner ought to have filed the same within a period of 10 days and there is no verified petition to condone the delay in representation and therefore 60 days benefit cannot be given and as such it cannot be stated that there was only a delay of 15 days.
15. The learned Counsel for the petitioner brought to the notice of this Court that the petitioner filed the verified petition in S.R. No. 48187 of 2005 and the Deputy Registrar condoned the delay in representation. This Court verified the Section register in respect of the S.R. Numbers for the verification petition and the special leave petition for the date 7-11-2005, which discloses that S.R. No. 48187 of 2005 was given for the verified petition in Item No. 533 and S.R. No. 48188 of 2005 was given for filing the special leave petition under Item No. 534. Therefore, the contention of the learned senior counsel for the respondent that the petitioner has not filed the verified petition and the delay also was not condoned by the Deputy Registrar for representation of the appeal with special leave petition cannot be accepted.
16. It is also contended by the learned senior counsel for the respondent that there is no whisper about filing the verified petition filed by the petitioner in the affidavit of the petitioner dated 12-2-2007. It is relevant to note that it is staled by the petitioner in the additional affidavit filed on 13-4-2007 and in that affidavit para 5 reads hereunder:
5. The verified petition has been filed in S.R. No. 48187 of 2005 by orders of the Deputy Registrar, the same was condoned.
17. It is also pointed out by the learned senior counsel for the respondent that the verified petition was not found in the Court bundle. This Court also perused the case bundle and also enquired the Registry and ultimately found that, a single sheet containing the verified petition was missing from the bundle. This Court is of the considered view that such verified petition was missing only due to the improper maintenance of the case bundle in the Section. This Court is constrained to state that the Registry should take effective steps for maintaining the case bundle by neatly stitching all the single sheets and it is also necessary to find out effective solution for maintaining the case bundle. However, this Court cannot attribute any motive to the Registry for misplacing the single petition in view of the fact that the perusal of the Registrar maintained by the Registry of the Section dated 7-11 -2005 clearly shows the filing of the verified petition under S.R. No. 48187 as item No. 533. Therefore. this Court has no hesitation to hold that there was a delay of only 15 days in filing the special leave petition.
18. Yet another objection raised by the respondent is that, there were corrections made in the dates found in the seals printed as 30th which has been subsequently corrected as 29th which points out the date of filing of the appeal. The communication sent by the Registry by furnishing the information sought for by the learned Counsel on record for the respondent dated 23-2-2007 discloses that the date seal of filing in the filing counter, by mistake or oversight: was wrongly fixed as 30-9-2005 instead of 29-9-2005. It is also specifically mentioned in that communication by the Registry that the printed filing sheet dated 29-9-2005 clearly shows that the appeal was filed on 29-9-2005 under Cr.A.SR. NO. 42744 of 2005. Therefore, this Court is of the considered view that it cannot be stated that the Registry has deliberately corrected the date of filing from 30th to 29th. It is also pertinent to note that even if the date was taken as 30-9-2005, the appeal was filed within the stipulated time and therefore, by making such correction, it cannot be stated that the Registry deliberately corrected the same to benefit the petitioner for gaining time in preferring the appeal.
19. The next contention of the learned senior counsel for the respondent is that the S.R. Number mentioned by the petitioner in his affidavit dated 12-2-2007 is not in existence at all. The information furnished by the Registry dated 23-2-2007 shows that S.R. No. 85366 of 2005 is not related to the proceedings in this case. The petitioner has come forward with an explanation in his affidavit dated 13-4-2007 that by mistake the S.R. Number was wrongly mentioned as S.R. No. 85366 of 2005 and the mistake was committed only due to oversight and was not an intended or deliberate one.
20. Yet another contention put forward by the learned senior counsel for the respondent is that the present version of the petitioner, quoting the reasons for the delay is that, he was suffering from viral fever and the earlier reason of the petitioner was that, he was totally unaware about the filing of special leave petition together with the condone delay petition. It is relevant to note that the petitioner has come forward with the explanation for the delay in the affidavit dated 11-3-2006. In this affidavit the petitioner categorically stated in para 5 as follows:
5. Since the appeal was preferred within the period of limitation, it was bona fidely felt that no condonation for filing the Special Leave was required only under such circumstances Criminal appeal was numbered and notice was ordered on 17-11-2005.
6. After receipt of the certified copy of the order from the Lower Court in C.C. No. 69 of 2005 on 25-8-2005, the same was handed over to my Counsel for filing of the appeal, only towards which the appeal was filed on 29-9-2005. Thereafter, when my Counsel intimated as to the requirement to the Special Leave Petition, the same was signed and presented by me on 7-11 -2005 inasmuch as due to my ill-health on account of viral fever I could come to Chennai to sign the papers only then.
Therefore, in view of the submissions made by the petitioner in the affidavit filed by him on 11-3-2006 for condoning the delay of 15 days, this Court is unable to see any contradictory versions for the delay. The fact remains that the appeal was filed on 29-9-2005 without special leave petition and the same was filed only after the Registry pointed out the defect and therefore, it was bona fidely felt that no condone delay petition for filing the special leave was required then. At this juncture, it is relevant to note that the Hon’ble Apex Court has held in N. Balakrishnan v. M. Krishnamurthy that even inaction on the part of the Advocate concerned can be explained as cause for the delay. I am unable to see any deliberate lapse on the part of the petitioner.
21. It is also pointed out by the learned senior counsel that S.R. No. 42744 of 2005 is repeatedly mentioned in the cause list. This Court is of the considered view that by mentioning such S.R. Number, no motive could be attributed to the Registry as the S.R. Number relates to the earlier filing of the appeal on 29-9-2005. Therefore, in view of the S.R. Number contained in the case papers, it is quite possible for the Registry to thought it fit to mention that S.R. Number.
22. The last but not the least contention put forward by the learned senior counsel for the respondent is that the interest of justice should be for both sides and not for the petitioner alone. The abovesaid sequence of events and the explanation given by the petitioner in the affidavits as well as in the rejoinders filed by the respondent clearly shows that there is absolutely no mala fide intention on the part of the petitioner herein. In this matter, this Court already considered the interest of justice in respect of both the sides and only due to that reason, this Court recalled the earlier order of granting special leave and admitting the appeal by the order dated 17-11-2005 on 6-3-2006. This Court also specifically mentioned in that order that the respondent in that petition, viz., the petitioner herein should be given opportunity to file an application under Section 5 of the Limitation Act to condone the delay in preferring the petition seeking the special leave as against the order of acquittal.
23. it is also well settled as per the decisions of the Hon’ble Supreme Court. cited supra, that the words “sufficient cause” should be construed liberally and length of delay is not relevant. It is also further held by the Hon’ble Apex Court that “sufficient cause” should be given liberal interpretation to ensure that substantial justice is done. The Hon’ble Apex Court also held that the acceptance of explanation given should be the rule and refusal, an exception. It is also pertinent to note that the petitioner could not be imputed negligence, inaction or lack of bona fides and the petitioner has given valid reasons and also shown sufficient: cause for condoning the delay of 15 days in filing the special leave petition to file the appeal against acquittal.
24. For the aforesaid reasons, this petition is allowed and the delay of 15 days in preferring the special leave petition to file the appeal against acquittal is condoned.