Pathan Husainkhan Umedkhan vs State Of Gujarat

                                                                                     NEUTRAL CITATION




   R/CR.RA/1042/2023                                    ORDER DATED: 18/08/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


        R/CRIMINAL REVISION APPLICATION NO. 1042 of 2023

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                        PATHAN HUSAINKHAN UMEDKHAN
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MS SONAL D VYAS(999) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS JIRGA JHAVERI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 18/08/2023

                                ORAL ORDER

1. RULE. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent

- State.

2. Heard learned Advocate for the applicant Ms. Sonal D. Vyas, who submits that the applicant is the accused who had moved Criminal Appeal No.47 of 2019 before the learned Sessions Judge, Patan against the judgment and award of conviction and sentence passed under Section 138 of the Negotiable Instruments Act, 1881. The Criminal Appeal came to be dismissed on 16.06.2023 on the ground of non-

NEUTRAL CITATION R/CR.RA/1042/2023 ORDER DATED: 18/08/2023 undefined prosecution observing that the applicant and his Advocate has failed to remain present during the hearing of the trial and thus, the learned Judge found that the applicant accused was not interested in proceeding with the matter.

3. It is further submitted that at the time of filing of the Appeal on 18.11.2019, the applicant was released on bail and in compliance of the order, 20% of the cheque amount, i.e. Rs.63,800/- was deposited on 26.12.2019. It is further submitted that from the year 2019, the matter had remained pending sine die. Under instructions, it is submitted that on the day when the matter came to be dismissed for non- prosecution, the applicant and his Advocate could not remain present because of cyclonic weather conditions.

4. It appears that from the order dated 16.06.2023, the Appeal has not been decided on merits. 20% of the cheque amount has already been deposited which shows the bonafide of the applicant to pursue the matter. The order also reflects that the arrest warrant was issued qua the applicant and the same Page 2 of 4 Downloaded on : Sun Sep 17 01:41:52 IST 2023 NEUTRAL CITATION R/CR.RA/1042/2023 ORDER DATED: 18/08/2023 undefined was cancelled with a direction to the applicant to regularly appear before the Court. The learned Judge observed that the applicant had failed to remain present.

5. Hearing of an Appeal is to be conducted by the Advocate representing the applicant and the matter has to be decided on merits since the applicant is suffering conviction and sentence. A reasonable opportunity ought to have been granted as the Criminal Appeal No.47 of 2019 was pending sine die since August 2019.

6. In view of the above, the order dated 16.06.2023 passed in Criminal Appeal No.47 of 2019 by the learned Sessions Judge, Patan is quashed and set aside. Criminal Appeal No.47 of 2019 is ordered to be restored to its original File and the learned Sessions Judge, Patan to hear and decide the same on merits. Both the sides are directed to co-operate with the learned Sessions Judge for final hearing of the matter.

NEUTRAL CITATION R/CR.RA/1042/2023 ORDER DATED: 18/08/2023 undefined

7. Accordingly, the present application stands allowed in the above terms. Rule is made absolute to the aforesaid extent. Direct service is permitted.

Sd/-

(GITA GOPI, J) CAROLINE Page 4 of 4 Downloaded on : Sun Sep 17 01:41:52 IST 2023