Jammu & Kashmir High Court – Srinagar Bench
Waheed Shafi Sheikh vs Naseer Ahmad Ganie on 23 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
S. No.14
Regular list
,,, HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlA(AS) No.42/2024, CrlM No.1726/2024 and
CrlM No.1727/2024 c/w
CrlA(AS) No.43/2024, CrlM No.1742/2024 and
\
CrlM No.1743/2024
WAHEED SHAFI SHEIKH
.....Petitioner(s)
Through: Mr.Aasif Wani, Advocate.
V/s
NASEER AHMAD GANIE
... ..Respondent(s)
Through : Mr. Aftab Ahmad, Advocate
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
23.07.2025
1. By this common order applications for condonation of
delay in filing the afore titled two appeals and applications for
leave to file the appeals alongwith the afore titled two appeals
are being disposed of.
2. It appears that the petitioner/appellant filed two separate
complaints against the respondent for offence under Section
138 of Negotiable Instruments Act before the Court of learned
Chief Judicial Magistrate, Sopore (hereafter referred to as “the
trial Magistrate”). One complaint which is subject matter of
CrlA(AS) 42/2024 & CrlA(AS) 43/2024 1|P a g e
CrlA (AS) No.42/2024 was with respect to cheque dated
31.08.2022 for an amount of Rs.2,00,000/-issued by the
respondent in favour of the petitioner/appellant, whereas the
other complaint which is subject matter of CrlA (AS)
No.43/2024 was in respect of cheque dated 05.08.2022 for an
amount of Rs.2,00,000/- issued by the respondent in favour of
the petitioner/appellant. It seems that both the complaints
came to be presented before the learned trial Magistrate on
28.11.2022 and on 08.02.2023 two separate orders came to be
passed by learned Chief Judicial Magistrate, Sopore, whereby
cognizance of the offence was taken and process was issued
against the respondent.
3. It also appears that on 14.09.2023 both the complaints
filed by the petitioner against the respondent came to be
dismissed for non-prosecution by the learned trial Magistrate
on the ground of continuous absence of the complainant
(petitioner/appellant). In this regard, two separate orders in
the two complaints came to be passed by the learned trial
Magistrate and these orders are subject matter of challenge in
the afore titled two appeals.
4. CrlA(AS) No. 42 of 2024 has been filed on 04.09.2023
and CrlA(AS) No.43 of 2024 has been filed on 10.12.2024.
Thus, there is a delay of 357 days in filing CrlA (AS) No.42 of
CrlA(AS) 42/2024 & CrlA(AS) 43/2024 2|P a g e
2024 and there is delay of 363 days in filing CrlA(AS) No.43
of 2024. The explanation tendered by the appellant for delay
in filing the two appeals is that the appellant came to be
arrested on 20.04.23 in connection with FIR No.125 of 2023
of Police Station Bahu Fort, Jammu for offences under
Sections 8, 21, 22, 25 of NDPS Act read with 3/25 Arms Act.
It has been submitted that the appellant was released on
interim bail on 02.08.2024 which came to be extended on
27.09.2024 and was made absolute on 15.10.2024 on medical
grounds. A copy of the bail order has been placed on record
by the appellant. It has also been pleaded that during the
period of his incarceration the appellant was taken seriously ill
and, therefore, after his release from custody he had to
undergo treatment which prevented him from filing the
appeals immediately upon his release from the custody.
5. The respondent has contested the applications for
condonation of delay by contending that the appellant was
being represented before the learned trial Magistrate by his
attorney holder and it is on the basis of preliminary statement
of his attorney holder that cognizance of offence was taken by
the learned trial Magistrate and process was issued against the
respondent. The respondent further has not disputed the fact
that the petitioner was taken into custody in connection with a
CrlA(AS) 42/2024 & CrlA(AS) 43/2024 3|P a g e
case arising out of FIR No.125 of 2023 of Police Station,
Bahu Fort, Jammu. The main thrust of the contention raised
by the respondent is that the appellant was represented by
special power of attorney holder, as such, in spite of being in
custody he was in a position to represent himself before the
learned trial Magistrate through his attorney.
6. I have heard learned counsel for the parties and perused
record of the case.
7. The ground urged by the appellant for condoning the
delay in filing the appeals, as also for setting aside the orders
of dismissal passed by the learned trial Magistrate, is that he
remained in custody w.e.f 20.04.2023 up to 02.08.2024 and
was granted absolute bail only on 15.10.2024, that too on the
medical grounds. Therefore, it was not possible for the
appellant to either appear before the learned trial Magistrate or
to file appeals against the orders of dismissal of his complaints
within the prescribed period of limitation.
8. So far as incarceration of the appellant with effect from
20.04.2023 to 02.08.2024 is concerned, the same is not in
dispute. A copy of the bail order, which is on record, upon its
perusal would reveal, that during the incarceration of the
appellant/petitioner he had developed certain medical
complications, as a result whereof, he was granted temporary
CrlA(AS) 42/2024 & CrlA(AS) 43/2024 4|P a g e
bail by the concerned Court, which was extended from time to
time and finally made absolute on 15.10.2024. Thus, the
material on record shows that besides the petitioner being in
custody w.e.f 20.04.2023 up to 02.08.2024, he was also
suffering from medical complications which needed
immediate treatment upon his release from the custody. Thus,
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
dated 14.09.2023 dismissing his complaints for non-
prosecution were passed.
9. So far as the contention of the respondent that because the
appellant had appointed a special attorney to contest the
complaints on his behalf, therefore, his incarceration in jail
would not offer him a ground to either seek setting aside of
impugned orders dated 14.09.2023 or to seek condonation of
delay in filing the appeals is concerned, I am afraid the same
cannot be accepted, because 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.
CrlA(AS) 42/2024 & CrlA(AS) 43/2024 5|P a g e
10. For what has been discussed hereinabove, the applications
for condonation of delay in filing the two appeals are allowed
and the applications for leave to file the appeals against the
impugned orders dated 14.09.2023 passed by learned Chief
Judicial Magistrate, Sopore are also allowed. The appeals
upon being taken up for consideration are also allowed in
view of the reasons discussed hereinabove and impugned
orders dated 14.09.2023 passed by learned trial Magistrate in
the two complaints, which are subject matter of present
appeals, are set aside. Learned trial Magistrate is directed to
proceed further in the two complaints which are subject matter
of these two appeals, in accordance with law.
11. The applications for condonation of delay alongwith
leave to file the appeals and the appeals shall stand disposed
of in the above terms.
12. Copy of this order be sent to the learned Chief Judicial
Magistrate, Sopore for information and compliance.
(SANJAY DHAR)
JUDGE
SRINAGAR
23.07.2025
Sarveeda Nissar
1. Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
Sarveeda Nissar CrlA(AS) 42/2024 & CrlA(AS) 43/2024 6|P a g e
I attest to the accuracy and
authenticity of this document
every page at bottom left side
24.07.2025 15:55
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