Complainant's Incarceration Is A Valid Reason To Allow Condonation Of Delay: J&K&L High Court

The High Court of Jammu and Kashmir and Ladakh has held that a complainant's time in jail is a valid reason to excuse delay in filing appeals, even if a special power of attorney was appointed to represent him.

Justice Sanjay Dhar made this observation while allowing two criminal appeals seeking restoration of cheque bounce complaints that were earlier dismissed for non-prosecution.

While allowing the applications for condonation of delay Justice Sanjay Dhar observed,

“Once it has been established that the appellant was in incarceration for a pretty long time, it would not have been possible for him to manage and supervise the performance and functions of his attorney”

Waheed Shafi Sheikh, the appellant, had filed two separate complaints under Section 138 of the Negotiable Instruments Act against respondent Naseer Ahmad Ganie, alleging dishonour of two cheques each for an amount of ₹2,00,000/-. The complaints were filed before the Chief Judicial Magistrate, Sopore, which took cognizance and issued process on 08.02.2023.

However, on 14.09.2023, both complaints were dismissed by the trial Magistrate for non-prosecution owing to the continuous absence of the complainant. Waheed Shafi Sheikh approached the High Court through two appeals along with applications for condonation of delay and leave to appeal.

Appearing for the appellant, Advocate Aasif Wani submitted that the delay of 357 days and 363 days respectively in filing the two appeals occurred due to the complainant's incarceration from 20.04.2023 in connection with FIR registered under the NDPS and Arms Acts.

Wani informed the Court that the appellant was released on interim bail on 02.08.2024, which was made absolute on 15.10.2024 on medical grounds. He contended that due to custody and subsequent medical treatment, the appellant was incapacitated to pursue the complaints or file timely appeals.

On the other hand, the respondent, represented by Advocate Aftab Ahmad, opposed the condonation plea. He contended that the complainant had appointed a special power of attorney holder, who was actively representing him before the Magistrate, including at the time of filing of the complaints and recording of preliminary statements. Hence, the incarceration should not excuse his non-appearance or delay, he countered.

Justice Dhar after considering the record and submissions noted that the appellant's incarceration from 20.04.2023 till 02.08.2024 was not in dispute and found support from the bail order placed on record. The Court observed that during this period the appellant developed serious medical issues which required immediate post-release treatment, thereby justifying his delay.

Rejecting the respondent's contention regarding the special attorney, the Court maintained that once it has been established that the appellant was in incarceration for a pretty long time, it would not have been possible for him to manage and supervise the performance and functions of his attorney.

It further ruled:

“Appellant has been able to show that he was prevented by a sufficient cause from filing the appeals within the prescribed period of limitation. He has also succeeded in showing that on account of this very reason he was prevented from appearing before the learned trial Magistrate when the impugned orders... were passed.”

Justice Dhar thus allowed both the applications for condonation of delay and leave to appeal. Consequently, the dismissal orders dated 14.09.2023 passed by the CJM Sopore were set aside. The trial Magistrate was directed to proceed with both complaints in accordance with law.

APPEARANCES:

For Petitioner: Aasif Wani