- 1 - HC-KAR NC: 2025:KHC:33069 CRL.A No. 1637 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE RAJESH RAI K CRIMINAL APPEAL NO. 1637 OF 2023 BETWEEN: MR WALTER D SOUZA AGED ABOUT 70 YEARS, S/O LATE FEDRICK D'SOUZA, R/AT OLZA VIHAR, NEAR KOTTARA POST OFFICE, KOTTARA MANGALORE - 575 006 …APPELLANT (BY MR. GANAPATHI BHAT FOR MR. VENKATESH SOMAREDDI, ADVOCATE) AND: SMT. SUJATHA AGED 51 YEARS R/AT NEAR PANDURANGA BHAJANA MANDIR CHILIMBI, ASHOKNAGAR POST MANGALORE - 575 006. …RESPONDENT (BY SRI. G. RAVISHANKAR SHASTRY G, ADVOCATE) THIS CRL.A IS FILED U/S 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 02.03.2015 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN CRL.A.NO.212/2012 AND CONSEQUENTLY UPHOLD THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 25.07.2012 PASSED BY THE J.M.F.C. - V Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33069 CRL.A No. 1637 of 2023 COURT, D.K., MANGALURU IN C.C.NO.206/2008 CONVICTING THE ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAJESH RAI K ORAL JUDGMENT I.A.No.1/2023 is filed under Section 5 of the Limitation Act, 1963 for condoning the delay of 2318 days' in preferring this appeal against the judgment dated 02.03.2015 passed in Crl.A.No.212/2012 by the Court of I Additional District and Sessions Judge, D.K Mangalore (hereinafter referred to as "the First Appellate Court"). 2. The application is accompanied with the affidavit of the appellant. It is stated in the affidavit that the appellant has filed private complaint under Section 200 of Cr.P.C. against the respondent for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') before the JMFC (V Court), Mangalore, D.K., in CC.No.206/2008 (hereinafter referred to as 'Trial Court'). In the said case, the respondent appeared and on assessment of oral and documentary evidence, the learned Magistrate convicted - 3 - HC-KAR NC: 2025:KHC:33069 CRL.A No. 1637 of 2023 the respondent-accused for the offence punishable under Section 138 of NI Act and imposed fine of Rs.4,05,000/- and in default to pay the fine, the accused to undergo simple imprisonment for a period of six months. The said judgment was challenged by the accused-respondent before the First Appellate Court in Crl.A.No.212/2012. 3. On reassessment of the evidence and documents on record, the First Appellate Court set aside the judgment passed by the Trial Court and acquitted the respondent-accused for the offence punishable under Section 138 of NI Act vide judgment dated 02.03.2015. Against the said judgment, the present appeal has been filed by the complainant-appellant. 4. It is further stated that there is a delay of 2318 days' in filing the appeal for the reason that the advocate, who had appeared for the appellant in Crl.A.No.212/2012, had never informed the appellant about allowing of the appeal till the year 2018. Thereafter, he handed over entire file pertaining to the case and in turn, the appellant engaged the services of another counsel to prefer an appeal before this Court and that - 4 - HC-KAR NC: 2025:KHC:33069 CRL.A No. 1637 of 2023 advocate also failed to prefer the appeal within time. However, the appellant was under the impression that the appeal has been preferred by the subsequent counsel before this Court. 5. Later, he came to know that the said advocate has died during the Covid-19 Pandemic. After that, once again he approached the present counsel and filed the present appeal. As such, due to the aforesaid process, delay has been caused. 6. Learned counsel for the appellant reiterating the contents in the affidavit argued that the delay in filing the appeal is neither intentional nor deliberate and is only bona fide one. He submits that the appellant is having a good case on merits, since the Trial Court has convicted the accused and the First Appellate Court has set aside the said conviction without properly appreciating the evidence. Accordingly, he prays to allow the appeal. 7. Per contra, learned counsel for the respondent has filed his statement of objections and contended that there is an inordinate delay of 2318 days' in preferring this appeal and the appellant has totally failed to assign any proper reasons to - 5 - HC-KAR NC: 2025:KHC:33069 CRL.A No. 1637 of 2023 condone the said delay. According to the learned counsel, the First Appellate Court has passed the judgment in the year 2015 i.e., 02.03.2015 and as admitted by the appellant himself, he kept quiet for a period of three years i.e., till 2018 and later he allegedly approached the counsel to prefer the appeal. However, the appellant has failed to disclose the name of the counsel whom he had engaged to file the appeal. He also failed to mention the date of death of the counsel and the reason for not engaging any other counsel till the year 2023. In such circumstances, the delay cannot be condoned. 8. Additionally, he contended that the appellant is a vigilant litigant, who personally maintained the file as stated in the affidavit. In such circumstances, the reason assigned by the appellant to condone the delay cannot be considered. Hence, he prays to dismiss the application. 9. Having heard the learned counsel for the respective parties, the only point that would arise for my consideration is:- Whether I.A.No.1/2023 deserves to be allowed by condoning the delay of 2318 days in filing this appeal? - 6 - HC-KAR NC: 2025:KHC:33069 CRL.A No. 1637 of 2023 10. I have carefully perused the affidavit accompanied to the application. 11. On perusal of the same, as rightly contended by the learned counsel for the respondent, Crl.A.No.212/2012 was disposed on 02.03.2015 and the appellant has failed to prefer any appeal till the year 2023. As admitted by the appellant from the year 2012 to 2018, he has neither approached the counsel nor made any attempt to file the appeal. Further it could be gathered from his affidavit that he is a vigilant litigant since it is stated in the said affidavit that he maintained the entire records of the case and approached the present counsel after lapse of 5 years. 12. In such circumstance, I am of the considered view that the inordinate delay of 2318 days' cannot be brushed aside by considering the casual explanation offered by the appellant. The approach of the appellant shows that he is an indolent person and this Court is not expected to give indulgence to such an indolent person. In that view of the matter, the delay does not deserve any indulgence by this Court by extending equity. - 7 - HC-KAR NC: 2025:KHC:33069 CRL.A No. 1637 of 2023 13. In the result, I.A.No.1/2023 deserves to be dismissed. Accordingly, I answer the point raised above in the "negative" and proceed to pass the following order, ORDER Accordingly, I.A.No.1/2023 is dismissed. Consequently, the appeal is also dismissed. SD/- (RAJESH RAI K) JUDGE CR List No.: 1 Sl No.: 8