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CR.MA/202/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 202 of 2011
In
CRIMINAL
MISC.APPLICATION No. 201 of 2011
In
CRIMINAL APPEAL No. 45 of 2011
With
CRIMINAL
APPEAL No. 45 of 2011
With
CRIMINAL
MISC.APPLICATION No. 201 of 2011
In
CRIMINAL APPEAL No. 45 of 2011
=========================================================
STATE
OF GUJARAT – Applicant(s)
Versus
THAKARSHIBHAI
JERAMBHAI JAMBUKIYA & 1 – Respondent(s)
=========================================================
Appearance
:
MS
CM SHAH, APP for Applicant(s) : 1,
None for Respondent(s) : 1 –
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 05/09/2011
ORAL
COMMON ORDER :
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
1. The
applicant – appellant – State has filed this application
u/s. 5 of the Limitation Act praying for condondation of delay of 13
days caused in filing the application seeking leave to prefer appeal
challenging impugned judgment and order dated 24/9/2010 rendered by
Ld. Addl. Sessions Judge, Dhrangadhra, in Sessions Case No. 16 of
2003, whereby the respondents herein, who were original accused nos.
2 and 3 in the aforesaid sessions case, came to be acquitted of the
offences punishable under Sections 409, 418, 468,
471, 477-A, 308, 167, 120-B read with sections 34 and 114 of the
Indian Penal Code [IPC].
2. Ms.
Shah, Ld. APP, for the applicant – appellant – State
submitted that the delay of 13 days caused in preferring the appeal
has been sufficiently explained in this application and the contents
of this application are supported by the affidavit of Under Secretary
of the Legal Department of the State. Ms. Shah, Ld. APP, further
submitted that the applicant – appellant has a meritorious case
and if the delay is not condoned, the meritorious case of the
appellant would be adversely affected and the applicant appellant
shall suffer great prejudice. There are all the chances for the
applicant appellant to succeed in the appeal.
3. Since
Ms. Shah, Ld. APP, for the applicant – appellant – State
submitted that there are merits in the appeal and if the delay is not
condoned, the meritorious case of the State shall be adversely
affected, we deem it expedient to examine the merits in the appeal.
4. Examining
the impugned judgment and order rendered by the trial Court, so also
the relevant papers, it transpires that original accused no. 1 –
Bhupatrai Bhailalbhai Acharya, who was a building contractor, was
given work order to construct residential quarters for the employees
, who were serving in PWD Department in the year 1982. At the
relevant time, the respondents herein, who were original accused nos.
2 and 3 were serving in the PWD Department and who had to keep watch
over the work of construction, which was to be made by the original
accused no. 1 – Bhupatrai Bhailalbhai Acharya. Some
irregularities came to be found in the work done by the accused no.
1. The construction work of the building was found weak and it
appeared that sub-standard materials were used.
5. The
prosecution examined 12 witnesses and relied upon number of
documentary evidence before the trial Court. It further transpires
that during the pendency of the trial, the original accused no. 1 –
Bhupatrai Bhailalbhai Acharya, who was contractor and who was mainly
responsible for the construction work itself, had died and,
therefore, the prosecution case qua original accused no. 1 –
Bhupatrai Bhailalbhai Acharya stood abated. The prosecution case,
therefore, proceeded further against the respondents original accused
nos. 2 and 3 about aiding and abetting the main original accused no.
1 in the offences charged against him. The trial
Court elaborately discussed oral and documentary evidence on record
and came to the conclusion that for the incident which occurred in
the year 1982, the complaint was filed in the year 2000. It was
observed that the delay was not sufficiently explained. Moreover,
about the alleged role played by the respondents – accused nos.
2 and 3, the trial Court examining the oral and documentary evidence
on record and came to the conclusion that the prosecution failed to
establish that they were negligent in performing their duties or that
they aided and abetted the main accused in committing the offences
charged against them.
6. Examining
the impugned judgment and order rendered by the trial Court and the
relevant papers, we are of the considered opinion that the trial
Court did not err in recording acquittal of the respondents by giving
them benefit of doubt. Under such circumstances, we do not find any
merit in the appeal. When such is the situation, the submission
advanced on behalf of the applicant – appellant that if the
delay caused in preferring the appeal is not condoned, the
meritorious case of the applicant appellant shall be adversely
affected, has no substance. Therefore, even if the delay is to be
condoned and the appeal is to be admitted, no
useful purpose would be served as the appeal itself lacks merits.
7. For
the foregoing reasons, the application praying condonation of delay,
application seeking leave to prefer appeal and the appeal stand
dismissed.
(D.H.WAGHELA,
J.)
(J.C.UPADHYAYA,
J.)
*
Pansala.
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