Dr. Motiram Deoram Patil vs Gulabrao Jagannath Patil And Anr
2017 Latest Caselaw 8798 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD


       CRIMINAL REVISION APPLICATION NO.251 OF 2017
                                with
             Criminal Application No.5513/2017 in
                     CRI.R.A.No.251/2017


  Dr. Motiram Deoram Patil,
  Age: 49 years, Occupation: Doctor,
  R/o.:26/A, 1st Floor, Nakul Housing Society,
  Shirpur, Tq. Shirpur, Dist. Dhule

                                               ...APPLICANT
                                               (Ori. Accused)
                   VERSUS


  1)       Gulabrao Jagannath Patil,
           Age: 46 years, Occu.:Service,
           R/o. Karvand Naka, Shirpur,
           Tq. Shirpur, Dist. Dhule

  2)       State of Maharashtra,
           Through Police Inspector,
           Shirpur Police Station, Shirpur,
           Tq. Shirpur, Dist. Dhule             ...RESPONDENTS
                                               (Orig. Complainant)
                                   ...

           Shri. Bhadane Chetan V., Advocate for Appellant;
           Shri. D.S. Bagul, Advocate for Respondent No.1;
           Shri. R.B.Bagul, A.P.P. for Respondent State.
                                   ...

                               CORAM: P.R. BORA, J.

                                ***
           Date of reserving the order:10/11/2017

           Date of pronouncing the order:17/11/2017
                               ***




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  ORDER:

1. Criminal Revision Application is heard finally with

the consent of the learned Counsel for the parties.

2. Whether the Criminal Appeal can be dismissed for

non compliance of the interim order passed therein is the issue

raised in the present Revision Application. In the order which

has been impugned in the present Revision Application such an

order has been passed by the learned Additional Sessions

Judge, Dhule.

3. Respondent no.1 herein had filed the complaint

under Section 138 of the Negotiable Instruments Act against

the present applicant vide STC No.515/2013 in the Court of

Judicial Magistrate, First Class, Shirpur. Learned Judicial

Magistrate, First Class, vide judgment and order passed on 29th

of December, 2016, convicted the applicant for the offense

punishable under Section 138 of the Negotiable Instruments Act

and sentenced him to suffer simple imprisonment for six

months and also directed him to pay Rs.3,50,000/- to the

complainant by way of compensation within two months of

passing of the said order; in default, was directed to suffer

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simple imprisonment for next two months.

4. Applicant filed Criminal Appeal No.12/2017, against

the judgment and order passed in STC No.515/2013, before the

Sessions Court at Dhule. In the said appeal, applicant filed an

application at Exh.5 and prayed for suspension of the sentence

imposed upon him by the trial Court till decision of the said

appeal and to release him on bail. Learned Sessions Judge

vide order passed on 25th of January, 2017, below the said

application at Exh.5 suspended the execution of the sentence

imposed in STC No.515/2013 subject to deposit of an amount

of Rs.1,00,000/- ( Rs. one lakh) by the applicant in the District

Court, Dhule, within one month from the date of the said order

and the applicant was also released on bail on his executing

P.R. bond in the amount of Rs.15,000/- with one surety in the

like amount.

5. The applicant though furnished the bail, did not

deposit amount of Rs.1,00,000/- within the stipulated period.

The present respondent, therefore, filed an application praying

for issuance of non bailable warrant against the applicant. On

the said application, show cause notice was issued to the

applicant, however, the applicant did not act upon the said

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notice. Thereafter, the applicant filed an application in the said

Criminal Appeal at Exh.17 for taking the matter on Board and

filed another application at Exh.18 seeking permission to

deposit an amount of Rs.1,00,000/- and to cancel the non

bailable warrant issued against him. Perusal of the impugned

order shows that no favourable order was passed on the said

application by the Sessions Court. The impugned order

further reveals that on 26th of September, 2017, the applicant

appeared before the Court. The respondent on that day filed

his say on the application at Exh.18 filed by the applicant.

However, when the matter was called for hearing, the applicant

remained absent. In the circumstances, observing that the

appellant - accused has committed breach of the order dated

25th of January, 2017, the learned Sessions Judge dismissed

the appeal on the said ground. Aggrieved thereby, the

applicant has filed the present revision application.

6. Shri Bhadane, learned Counsel appearing for the

applicant submitted that though the applicant could not deposit

the amount of Rs.1,00,000/- within the stipulated period in

pursuance of the order dated 25th of January, 2017, passed by

the learned Sessions Judge, Dhule, subsequently, he had shown

his bona fides of depositing the said amount and has

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accordingly preferred an application before the Sessions Court

to permit him to deposit the said amount. Learned Counsel

submitted that, in fact, the learned Sessions Judge must have

permitted the appellant to deposit the said amount and should

have protected the liberty of the applicant till decision of the

Criminal Appeal. Learned Counsel further submitted that in no

case the appeal filed by the applicant could have been

dismissed by the learned Sessions Judge without hearing the

same on merits only on the count of breach committed by the

applicant of the order passed by the said Court on 25th of

January, 2017. Learned Counsel submitted that the applicant

is ready to deposit the amount of Rs.1,00,000/- before the

Sessions Court at Dhule. Learned Counsel further prayed that

by permitting the applicant to deposit the said amount, the

order passed by the learned Sessions Judge on 26th of

September, 2017, be quashed and set aside and the applicant

be released on bail during the pendency of the said Criminal

Appeal.

7. Shri D.S.Bagul, learned Counsel appearing for the

respondent, opposed for accepting the request made by the

applicant. Learned Counsel submitted that in view of the order

passed on 25th of January, 2017, the applicant was under an

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obligation to deposit the amount of Rs.1,00,000/- on or before

24th February, 2017 but the applicant did not deposit the said

amount within the said period nor sought any extension of time

to deposit the amount till 12th of September, 2017. Learned

Counsel submitted that in the circumstances, the learned

Sessions Judge has rightly dismissed the appeal filed by the

applicant and no interference is required in the order so passed.

8. I have carefully considered the submissions

advanced by the learned Counsel appearing for the respective

parties. I have also perused the impugned order and the other

material placed on record.

9. The impugned order is apparently unsustainable.

As is revealing from the record and from the impugned order,

an interim order was passed on 25th of January, 2017, by the

Sessions Court below the application at Exh.5 in the said

Criminal Appeal and the Court has thereby suspended the

execution of the sentence imposed upon the applicant in in STC

No.515/2013 subject to deposit of amount of Rs.1,00,000/- by

the applicant in the District Court at Dhule within one month

from the date of the said order. The Court had further passed

an order directing release of the applicant on furnishing P.R.

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  bond and surety bond in the amount of Rs.15,000/-.                             Non

fulfillment of the said order at the most could have resulted in

vacating the order passed below Exh.5 on 25th of January,

2017, but in no case, the learned Additional Sessions Judge

could have dismissed the appeal of the applicant on the said

ground without hearing the same on merits.

10. Since the applicant did not deposit the amount of

Rs.1,00,000/- within the stipulated period, subject to which the

execution of the sentence imposed upon him by the trial Court

was suspended, the said interim order stood automatically

vacated as a result of which the applicant was liable to be taken

in custody so as to serve the sentence imposed upon him by

the trial Court. Nevertheless, the applicant was having every

right to prosecute his appeal on merits even by remaining

behind the the bars. The right of the applicant to agitate the

points raised by him in the appeal, in exception to the

impugned judgment, was intact, and could not have been taken

away by the Court for non fulfillment of the condition imposed

while suspending the execution of the sentence imposed upon

him by the trial Court. The condition so imposed

by the Court was only for suspension of execution of the

sentence during pendency of the said appeal, and not for

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hearing the appeal. The learned Sessions Judge, thus, must

have heard the appeal on merits and could not have dismissed

the same for non compliance of the interim order by the

appellant before him. The impugned order, therefore,

deserves to be set aside.

11. The applicant has also filed an application seeking

his release on bail. Since the interim relief granted in his

favour was vacated automatically by virtue of the order passed

on 26th of September, 2017, in Criminal Appeal No.12/2017,

the applicant was bound to surrender before the Court of

Judicial Magistrate, First Class, to serve out the sentence

imposed upon him by the said Court. Accordingly, the

applicant has surrendered before the Court of Judicial

Magistrate, First Class, on 1st of November, 2017, and since

then he is in jail. Learned Counsel for the applicant submitted

that the applicant is ready to deposit the amount of

Rs.1,00,000/- before the District Court at Dhule and has,

therefore, prayed for his release on bail. In view of the

finding recorded by me hereinabove, that the order dated 26th

of September, 2017, passed in Criminal Appeal No.12/2017

deserves to be set aside and the said Criminal Appeal requires

to be heard on merits, the request made by the applicant for

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his release on bail till decision of the said Criminal Appeal also

deserves to be considered. As noted hereinabove, the

applicant has now undertaken to deposit the amount of

Rs.1,00,000/- before the District Court at Dhule forthwith. In

fact, the applicant was under an obligation to deposit the said

amount of Rs.1,00,000/- on or before 24th of February, 2017.

In the circumstances, it would be unjust to revive the order

passed by the Sessions Court on 25th January, 2017, by

permitting the applicant to merely deposit the said amount of

Rs.1,00,000/-. At the same time, it would also be improper to

keep the applicant in jail during pendency of the Criminal

Appeal filed by him. It appears to me that if the applicant is

directed to deposit an amount of Rs.50,000/- in addition to the

amount of Rs.1,00,000/- for his release on bail, it would meet

the ends of justice. Hence, the following order:

ORDER

1. The Revision Application (No.251/2017) is allowed.

2. The order passed below Exh.1 in Criminal Appeal

No.12/2017 by the Additional Sessions Judge, Dhule, on 26th

September, 2017, is quashed and set aside. Consequently, the

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said appeal stands restored to its original file.

3. The learned Additional Sessions Judge shall hear

and decide the aforesaid appeal on merits in accordance with

law.

4. The applicant is directed to deposit a sum of

Rs.1,50,000/- (Rs. one lakh, fifty thousand) in the District Court

at Dhule within ten days from the date of this order.

5. If the applicant deposits the aforesaid amount of

Rs.1,50,000/- in the given period, he be released on bail on his

executing fresh P.R. bond in the amount of Rs.15,000/- with

one surety in the like amount.

Criminal Application No.5513/2017, thus, stands allowed

in the aforesaid terms.

(P.R.BORA) JUDGE ...

AGP/251-17crra