NEUTRAL CITATION
R/CR.RA/391/2023 ORDER DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 391 of 2023
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SUTHAR ANKITKUMAR PRAVINBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR AM BHATASARA(5846) for the Applicant(s) No. 1
MR BHUVNESH GAHLOT(10286) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR LB DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 25/09/2023
ORAL ORDER
1. The present application is filed by the applicant-convict and assailed the judgment and order dated 05.03.2022 passed by the learned 6th Additional Chief Judicial Magistrate, Mahesana in Criminal Case No. 3196 of 2019, wherein, the applicant has been convicted for the offence punishable under Section 138 of the N.I. Act, whereby the applicant is sentenced to undergo S.I. of 1 year with fine of Rs.5,00,000/- and in default S.I. for further period of two months.
2. Being aggrieved and dissatisfied with the said order of conviction and sentence, the Revisionist preferred Criminal Page 1 of 5 Downloaded on : Tue Sep 26 20:43:21 IST 2023 NEUTRAL CITATION R/CR.RA/391/2023 ORDER DATED: 25/09/2023 undefined Appeal No.65 of 2022 before the learned Sessions Judge, Mahesana and the order and sentence recorded by the learned Additional Chief Judicial Magistrate, Mahesana is confirmed and upheld by learned Sessions Judge, Mahesana by order dated 02.03.2023.
3. On perusal of the complaint, it appears that the present revisionist has given a cheque of Rs.7,50,000/- to the respondent No.2 - complainant to reimburse the outstanding dues. Further, when the respondent No.2 deposited the said cheque in the Bank, the cheque was dishonoured due to insufficient funds in the revisionist's bank account. After knowing the said information from the Bank, the respondent No.2 served a statutory demand notice but the respondent No.2 did not care to reimburse the outstanding dues. Therefore, the respondent No.2 filed a complaint under Section 138 of the N.I. Act before the learned 6th Additional Chief Judicial Magistrate, Mahesana and which is confirmed by the learned Sessions Judge, Mahesana.
4. Learned advocate for the applicant has submitted that the complainant has failed to prove legal enforceable debt and even Page 2 of 5 Downloaded on : Tue Sep 26 20:43:21 IST 2023 NEUTRAL CITATION R/CR.RA/391/2023 ORDER DATED: 25/09/2023 undefined no opportunity to defend is availed to the present applicant. It is submitted that right to cross-examination of the revisionist came to be closed and revisionist was not allowed to cross-examine the complainant. It is submitted that even legally enforceable debt is not proved and alleged transactions of Rs.7,50,000/- is on record. It is further submitted that Rs.5,00,000/- is already paid as a fine amount. Hence, prayer of the applicant may be considered.
5. Per contra, Learned APP has vehemently opposed the application and submitted that the trial Court has properly appreciated the evidence produced on record. Therefore, he prays that the present application be dismissed.
6. Having heard the learned advocates for the respective parties and having considered the documents produced on record, it appears that an amount of Rs.5,00,000/- has been paid and considering the fact that amount of legal enforceable debt is questioned and offence is bailable and compoundable one during the pendency of the Criminal Revision Application. Keeping in mind provision of Section 148(A) of the Negotiable Instruments Act, the present application deserve consideration. Page 3 of 5 Downloaded on : Tue Sep 26 20:43:21 IST 2023
NEUTRAL CITATION R/CR.RA/391/2023 ORDER DATED: 25/09/2023 undefined
7. In view of the above, this Court deems it fit to grant interim relief in terms of para 9(C) and stay the order of sentence imposed by the 6th Additional Chief Judicial Magistrate, Mahesana in Criminal Case No. 3196 of 2019 , which is confirmed by the learned learned Sessions Judge, Mahesana vide order dated 02.03.2023 in Criminal Appeal No. 65 of 2022, subject to deposition of 50% amount of Rs.7,50,000/- i.e. Rs.3,75,000/- within 15 days from today before the learned Trial Court. (The applicant shall have liberty to adjust the amount, if any, deposited pursuant to earlier order passed by the concerned Trial/Appellate Court), pending hearing and final disposal of the Criminal Revision Application. The applicant shall be released on bail by executing a fresh bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the trial Court, if his presence is no longer required for any other offence on the conditions that:-
(a) shall not take undue advantage of liberty or misuse liberty;
(b) shall not leave India without prior permission of this Court.
(c) shall furnish the present address of his Page 4 of 5 Downloaded on : Tue Sep 26 20:43:21 IST 2023 NEUTRAL CITATION R/CR.RA/391/2023 ORDER DATED: 25/09/2023 undefined residence to the Court concerned at the time of execution of the bond and shall not change the residence without the prior permission of this Court.
d) shall proceed with the main matter as and when it may be listed.
Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 5 of 5 Downloaded on : Tue Sep 26 20:43:21 IST 2023