Urgent Advice needed.
Querist :
Anonymous
(Querist) 23 February 2011
This query is : Resolved
I am the original complainant it is the case of cheating in impersonation over the internet it was conspiracy meticulously planned and hatched by the accused it is an ongoing case in the trial court the police have framed him in the IPC section 420 the police grossly left out the other IPC sections to frame the accused. The Advocate of the Accused filed the petition in the High Court of Bombay Under section 482 of IPC to quash the case or to transfer the case to any other court. The accused gave a forged affidavit with the signature of the non-existing Registrar. The Affidavit had the counterfeit seal and stamp of different High Court belonging to a different state. I brought the fraud affidavit having a counterfeit to the notice of the Bombay High Court on which an inquiry was made by the Bombay high Court. All the reports have come from the other High Court stating that each and everything mentioned in the Affidavit is forged and false. The matter was in one of the judges court in Bombay, he did not take any cognizance of the forged doctored affidavit, he had all the inquiry reports in his hands even then he disposed of the case. And the accused has walked away scot free. The order was passed 2009. What should be my next course of action. Can I re appeal and challenge the order. Under what sections it is to be done. Do I have to file a Police complainant for the fraudulent affidavit? Please I am looking forward for your valuable advice.
s.subramanian
(Expert) 23 February 2011
The matter is very badly delayed. You cannot file any appeal now in view of the inordinate delay.
A V Vishal
(Expert) 23 February 2011
CONDONATION OF DELAY The basis of the principle of condonation of a delay, that has managed to creep into the due process of litigation in any matter, relates to Section 5 of The Limitation Act, 1963. This provision lays down the necessities and requirements of circumstances where the Court can condone a delay in the proceedings. Section 5 of The Limitation Act, 1963 provides as follows: Extension of prescribed period in certain cases - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. In New India Insurance Co. Ltd. v. Smt. Shanti Mishra AIR 1976 SC 237, it was held by the SC - The discretion given by Sec. 5 should not be crystallized or defined so as to convert a discretionary matter into a rigid rule of law. The expression “sufficient cause” should receive a liberal construction. In O.P. Kathpadia v. Lakhmir Singh AIR 1984 SC 1744, the SC held that if refusal to condone a delay results in a grave miscarriage of justice, it shall be a ground sufficient to condone the delay. In Ajit Singh v. State of Gujarat AIR 1981 SC 733, the Apex Court held that for “sufficient cause”, a delay in preferring an appeal may be condoned, but in doing so the event or circumstances arising after the expiry of the period of limitation cannot be looked into. The Court may, however, reject an application for condonation of delay but with reasons recorded at the very threshold of the matter and without a notice to the respondent concerned. The very object of the provision of Rule 3A of Order 41 of the CPC, which provides for filing an application for condonation of delay along with the memorandum of appeal, was to see that the question of limitation doesn’t remain lingering till the disposal of the appeal. This view was held by the Gujarat HC in N.A. Shethi v. JC Shaw AIR 1987 Guj 205. However, when there is a delay and no application for its condonation is filed, the appeal is barred by limitation. The very law of limitation is enshrined in the maxim “Interest republicize up sit finis litium” which means “it is for the general welfare that a period be put to litigation”. It envisages the idea that every legal remedy must be kept alive for a legislatively fixed period of time. In Collector, Land Acquisition v. Mst. Katiji (1987) 2 SCC 107, the Apex Court laid down the several aspects of condonation of delay :- 1. A litigant should not benefit by lodging a late appeal. 2. A refusal to condone may result in a meritorious matter being thrown out at the very threshold and consequently, the cause of justice may be defeated. 3. The doctrine must be applied in a rational and pragmatic manner and a pedantic or dull approach should be avoided. 4. When substantial justice and technical considerations are pitted against each other, the former should be given a preference over the latter. The other side cannot claim a vested right in injustice merely because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately or mala fide. A litigant should not stand to benefit by resorting to delay. He actually runs a serious risk to his cause. 6. It is not that judiciary is respected on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice. A similar view has been held in N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123. The Supreme Court condoned a delay of 883 on a sufficient cause. It held that the length of the delay is not a matter, but the acceptance of the explanation of the delay is the only criterion. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The rules of limitation are not meant to destroy the rights of the parties but to see that the parties do not resort to dilatory tactics and seek remedy for redressal of their legal injury. The Court further held that the time limit fixed for approaching the court in different situations is not to allow, on the expiry of such time, a bad cause to transform into a good one. Thus, it was laid down that the law of limitation was founded on public policy. Thus, the law of limitation U/s. 5 of the Limitation Act in regard to condonation of delay lays down that there should be a sufficient reason attached to the delay caused and it should be taken into account that the rejection of an application for condonation of a delay should not be detrimental to the interests of justice and equity.
Basavaraj
(Expert) 23 February 2011
right answer by experts
Ajay Bansal
(Expert) 23 February 2011
Go to Supreme Court under Art. 136.
Querist :
Anonymous
(Querist) 23 February 2011
Dear Mr. Vishal, thanks a lot for your immediate reply and thanks for your advice. I was cheated of huge amount of money running into lakhs by the Accused. I was plundered and looted therefore I could not afford and hire an advocate to plead my case I represented my case in person. Being a lay man I was not aware that I have to file an appeal within a certain time frame. I had in mind that I can appeal with 3 years from the date of order passed in 2009. I was grossly misled by the High Court Judge who did not mention in his order copy that if I want to appeal I must appeal within this time frame. I think the Judge must have deliberately not mentioned the time frame period knowing that this would keep me in the dark and the possibilities of appealing in the Bombay High Court would be removed. Had the judge mentioned in his order copy the time frame, I would have definitely appealed with the time frame. I have the entire detail of the certified copies which have come from the High Court of the other State. The Accused has given a fraud affidavit with a signature of a fictitious non-existing Registrar having a Counterfeit Stamp and Seal of the other High Court which belongs to the other State. and these reports are in the possession of the Bombay High Court which had been directly sent from the other High Court to the Bombay High Court. I want the High Court of Bombay to consider all these above facts which was not known to me and reopen the forged Affidavit case. I reside in Maharashtra filing the case in the Supreme Court would be difficult for me as I do not have the money to travel from Maharashtra to Delhi (Supreme Court). Looking forward for your valuable reply and advice.
