M/S. Seair Impex Pvt. Ltd. And Anr vs M/S. Elfit Exports Pvt. Ltd. And ...
2021 Latest Caselaw 5868 Bom

                                                                              36-IA-1108-2021.doc



                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION

                                 INTERIM APPLICATION NO. 1108 OF 2021
                                                IN
                                   CRIMINAL APPEAL NO. 1715 OF 2019


            M/s. Seair Impex Pvt. Ltd. & Anr.                       ...Applicants
                 Versus
            M/s. Elfit Exports Pvt. Ltd. & Anr.                      ...Respondents


            Mr. Anil C. Lalla i/b Lalla & Lalla for the Applicants

            Mr. Karan Jain i/b Mr. Mohit Bhansali for the Respondent No. 1

            Mr. P. H. Gaikwad-Patil, A.P.P for the Respondent No.2-State


                                               CORAM : REVATI MOHITE DERE, J.

THURSDAY, 1st APRIL 2021

P.C. :

1 By this application, the applicants seek the following

substantive prayer :

"A. That pending the Hearing and Final Disposal of Criminal Application (Leave to Appeal) NO. 229/2019, this Hon'ble Court be pleased to enlarge the Applicants on Bail on the same terms and conditions as granted by the ld. Magistrate, 43rd Court, Borivali u/s 437A CRPC while acquitting Applicants in CC No. 843/SS/2011."

SQ Pathan                                                                                           1/8




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            2                 Learned counsel for the applicants submits that on 4th

December 2019, this Court (Coram : Nitin W. Sambre, J.) granted leave to

file appeal to the respondent No.1-M/s. Elfit Exports Pvt. Ltd. and admitted

the appeal. Vide the said order, action under Section 390 of the Criminal

Procedure Code (`Cr.P.C') was taken and direction was given that the

accused be admitted to bail on the same terms and conditions on which he

was ordered to be released by the Court below.

3 Learned counsel for the applicants submits that pursuant to the

said order, the applicant No. 2 along with his Advocate filed an application

to surrender along with a bail application. He submits that the Advocate

Shri Tushar Londhe informed the Magistrate about the order dated 4 th

December 2019 passed by this Court and prayed that the applicant No.2 be

enlarged on bail on the same terms and conditions as directed by the High

Court vide order dated 4th December 2019. He submits that surprisingly the

Magistrate, instead of complying with the directions of this Court, advised

the applicant and his Advocate to move the High Court for bail and returned

the application filed by the applicant to the Advocate, without passing any

orders. He submits that the Advocate for the applicant once again requested

the Magistrate to pass orders directing him to approach the High Court,

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however, the Magistrate rose for his lunch break and did not take the

application on record. The submission of the learned counsel for the

applicants has also been mentioned in the application in para 3 of the

application. According to the learned counsel for the applicants, since the

Magistrate refused to accept the application pursuant to the order dated 4 th

December 2019, the applicant is constrained to file the aforesaid

application seeking bail, pending the hearing and final disposal of the

aforesaid appeal. Learned counsel relied on the judgment of the Division

Bench of this Court in the case of Farooq Abdul Gani Surve vs. The State

of Maharashtra passed in Criminal Application No. 1087 of 2011 in

Criminal Appeal No. 315 of 2007, in particular, para 5 of the said order.

4 Learned A.P.P does not dispute the fact that the Magistrate

could not and ought not to have refused to accept the application filed by

the applicant pursuant to the order passed by this Court on 4 th December

2019.

5 Perused the papers. The applicants are the original accused,

who were facing prosecution in the Court of the Metropolitan Magistrate,

43rd Court at Borivali, Mumbai, for the alleged offences punishable under

Sections 138 r/w 141 of the Negotiable Instruments Act (CC No.

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843/SS/2011). The respondent No. 1 is the original complainant. After

trial, the applicants were acquitted of the offences punishable under Section

138 of the Negotiable Instruments Act. Being aggrieved by the judgment

and order of acquittal passed by the learned Metropolitan Magistrate, 43 rd

Court, Borivali, Mumbai, the respondent No. 1 filed an application seeking

leave to file appeal i.e. Criminal Appeal No. 229 of 2019. On 4 th December

2019, this Court (Coram : Nitin W. Sambre, J.) passed the following order :

"Heard.

2. Leave to appeal is granted.

3. Admit.

4. Action under section 390 of the Criminal Procedure. Accused be admitted to bail on the same terms and conditions on which he was ordered to be released by the Court below.

5. Call for record and proceedings.

6. To be heard along with Criminal Application No.59 of 2019."

6 The order is clear. It specifically states that the accused be

admitted to bail on the same terms and conditions, on which he was ordered

to be released by the Court below. The Magistrate could not have refused

to entertain an application filed by the applicant seeking his enlargement on

bail pursuant to the said order dated 4 th December 2019. The Division

Bench of this Court in the case of Farooq Abdul Gani Surve vs. The State

of Maharashtra (supra), in para 5, issued certain directions. The object of

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Section 390 Cr.P.C is to ensure that an acquitted person does not abscond

during the pendency of an appeal filed against his acquittal. This Court

observed that there was no impediment to release such persons who were

acquitted during the pendency of their appeal against acquittals. The

Division Bench of this Court in the said judgment, in para 11 referred to the

judgment of this Court in the case of State of Maharashtra vs. Bapu

Pandu Mali - 2010 All MR (Cri) 120, in particular, paras 5 and 6, which

read thus :

"11. ...............

5. After hearing the learned amicus curiae and the learned Additional Public Prosecutor, we give the following directions:

That in case of warrant under Section 390, the Sessions Judge, on production of the persons, shall immediately offer him bail on conditions which are just and proper, and in appropriate cases, the Sessions Judge may also consider release of such persons on personal bond. However, if he learned Sessions Judges are of the view that the surety is not produced or surety is not sufficient, they would remand the persons to the prison. In that case, they should inform the High Court immediately that the person has been remanded to the custody in case originally, the warrants are issued by the High Court.

6. We are told that such directions were given in year 2004 also, but the learned Sessions Judges have not been following these directions. Therefore, in case, in future, any Sessions Judge is found not to follow the directions, besides taking departmental action against such learned Sessions Judge, he shall also be liable to contempt of this Court."

(emphasis supplied)

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It would also be relevant to reproduce para 12 of Farooq

Abdul Gani Surve vs. The State of Maharashtra (supra), which reads as

under :

"12. We are, therefore, constrained to issue similar directions to the Sessions Court. We have been told that though orders which are passed by the Supreme Court and this Court are shown to the Sessions Court, without justifiable reasons or recording any reasons in writing, directions given by this Court are not followed. It is, therefore reiterated that, in case, in future, if any Sessions Judge is found not to follow the directions, besides taking administrative action against such learned Sessions Judge, he shall also be liable for contempt of this Court."

7 It is evident from the aforesaid that the Magistrate could not

and ought not to have refused to entertain the bail application filed by the

applicant. Having regard to the aforesaid, it would be better to relegate the

matter back to the Magistrate for complying with the said directions issued

by the Division Bench of this Court in the case of Farooq Abdul Gani

Surve vs. The State of Maharashtra (supra). On an application being filed

by the applicant, seeking his enlargement on bail, the learned Magistrate

shall forthwith pass orders on the same and release the applicant on bail on

the same terms and conditions on which he was ordered to be released by

the Court.

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            8                 At this stage, learned counsel for the applicant states that he

will file an appropriate application before the trial Court between 6 th and 8th

April 2021.

9 In the meantime, the learned Magistrate to give an explanation

as to why the Division Bench judgment in the case of Farooq Abdul Gani

Surve vs. The State of Maharashtra (supra) has not been complied with

and why despite the order dated 4th December 2019 being clear i.e. asking

the Court to release the applicant on bail on the same terms and conditions

as was directed earlier, has not been complied with.

10 Learned Magistrate to give his explanation on or before 21st

April 2021 in a sealed envelope through the Registry.

11 The application is disposed of on the aforesaid terms, however,

the matter is kept for recording compliance of the order dated 4 th December

2020 as well as for obtaining the explanation of the learned Magistrate on

23rd April 2021.

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            12             Registry to communicate this order by fax/email/special

messenger to the learned Metropolitan Magistrate, 43rd Court at Borivali,

Mumbai, forthwith.

13 All concerned to act on the authenticated copy of this order.

REVATI MOHITE DERE, J.

SQ Pathan                                                                                         8/8