Mahabir Prasad Kannodia Vs. State of Jharkhand Court and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. order1. this application for leave to appeal under section 378(4) of the cr.p.c. against the judgment and order dated 30th may, 2003 passed by the judicial magistrate 1st class, latehar in complaint case no. 4 of 1994/trial no. 1533 of 2003 has been preferred by the petitioner after delay of about 25 days o.p. no. 2 was noticed in the matter of limitation and admission.2. having heard the counsel for the parties and sufficient cause having been explained, we condone the delay of 25 days.3. so far as merit of the case is concerned, it appears that the petitioner claimed to have purchased the land measuring 18 acres of plot nos. 3 and 27 of khata no. 58 by registered sale deed dated 18th july, 1973 (exhibit-1) and also claimed to be in possession of the land. it was alleged that the o.p. no. 2 sold the land in question to a 3rd party, namely, ram prasad singh by a sale deed contained in exhibit 1/a, which constitutes offence under sections 420, 468 and 504, i.p.c.4. from the pleadings made by the complainant, it will be evident that the main ground taken by the complainant was that the hukumnama, on the basis of which the subsequent sale deed was executed, was forged but the learned court below did not choose to give any finding of the same, as the issue whether the hukumnama was forged or not, cannot be determined by a criminal court, except by a court of civil jurisdiction.5. in the aforesaid circumstance, if the court below has held that the dispute is of a civil nature and acquitted o.p. no. 2 we find no ground made out to interfere with the judgment in question.this application is dismissed.

Judgment:
ORDER

1. This application for leave to appeal under Section 378(4) of the Cr.P.C. against the judgment and order dated 30th May, 2003 passed by the Judicial Magistrate 1st Class, Latehar in Complaint case No. 4 of 1994/Trial No. 1533 of 2003 has been preferred by the petitioner after delay of about 25 days O.P. No. 2 was noticed in the matter of limitation and admission.

2. Having heard the counsel for the parties and sufficient cause having been explained, we condone the delay of 25 days.

3. So far as merit of the case is concerned, it appears that the petitioner claimed to have purchased the land measuring 18 acres of Plot Nos. 3 and 27 of Khata No. 58 by registered sale deed dated 18th July, 1973 (Exhibit-1) and also claimed to be in possession of the land. It was alleged that the O.P. No. 2 sold the land in question to a 3rd party, namely, Ram Prasad Singh by a sale deed contained in Exhibit 1/a, which constitutes offence under Sections 420, 468 and 504, I.P.C.

4. From the pleadings made by the complainant, it will be evident that the main ground taken by the complainant was that the Hukumnama, on the basis of which the subsequent sale deed was executed, was forged but the learned Court below did not choose to give any finding of the same, as the issue whether the Hukumnama was forged or not, cannot be determined by a criminal Court, except by a Court of civil jurisdiction.

5. In the aforesaid circumstance, if the Court below has held that the dispute is of a Civil nature and acquitted O.P. No. 2 we find no ground made out to interfere with the judgment in question.

This application is dismissed.