Shaikh Suleman Shaikh Rustam vs Lata Anil Gangwal Through Her ...
2022 Latest Caselaw 11846 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                  CRIMINAL APPLICATION NO. 3845 OF 2022
                  IN CRIMINAL REVISION NO. 334 OF 2022

                 SHAIKH SULEMAN SHAIKH RUSTAM
                              VERSUS
      LATA ANIL GANGWAL THROUGH HER POWER OF ATTORNEY
                HOLDER DR. ANIL HANSRAJ GANGWAL
                                 ...
            Advocate for Applicant : Mr. Ravindra V. Gore
               Advocate for Respondent : Mr. P. F. Patni
                                 ...


                                           CORAM :        S. G. MEHARE, J.

                                           DATE       : 18-11-2022

PER COURT :-

1. Heard the learned counsel for the applicant.

2. Issue notice to the respondent, returnable on 12.12.2022.

3. Mr. P. F. Patni, the learned counsel waives service of notice

for the respondent.

4. The learned counsel for the applicant would submit the

applicant has been convicted for the offence punishable under

Section 138 of the Negotiable Instruments Act. His appeal has

also been dismissed. The cheque in question was issued to the

complainant as a security, but it has been misused. This aspect

has not been properly appreciated by the both courts. The

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applicant has a good case on merits. Hence, substantive sentence

may be suspended and the applicant may be released on bail.

5. The learned counsel for the respondent has opposed the

application and argued that both Courts have correctly considered

the facts of the case and appreciated the evidence. They have

assigned the appropriate reasons. This is nothing but protracting

the trial. Since 2017, the applicant was enjoying the money. In

case, the Court comes to conclusion that sentence may be

suspended and he may be released on bail, condition should be

imposed that the applicant shall atleast deposit substantial

amount and conclude the hearing soon after the receipt of R & P.

6. Perused the papers. The transaction is of the year 2017. The

complaint was filed in year 2019. The cheque in question is

admittedly issued to the complainant. The offence under Section

138 of the N.I.Act is mostly technical. Two concurrent findings are

against the applicant. A huge amount of Rs.20,00,000/- (Rs.

Twenty Lakhs) has been involved in the matter. In the light of the

facts of the case, it would be appropriate to direct the applicant to

deposit Rs.10,00,000/- (Rs. Ten Lakhs) in the Court within a week

from today and undertake to conclude the hearing of this petition

as soon as R & P is received from the trial Court. Hence, the

following order :-

I)      The execution of sentence imposed by the learned 16 th





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Judicial Magistrate, First Class, Aurangabad, in S.C.C.No.3149

of 2019 by judgment and order dated 06.05.2022 and

confirmed by the learned Additional Sessions Judge,

Aurangabad, in Criminal Appeal No. 69 of 2022 by judgment

and order dated 16.11.2022, is suspended till the conclusion

of revision.

ii) The applicant be released on temporary bail on furnishing

P.B. and S.B. of Rs.50,000/- with one solvent surety of the like

amount.

iii) Bail before the learned Additional Sessions Judge at

Aurangabad.

iv) It is made clear that if the applicant fails to comply with

the condition imposed above, the bail granted to him

would automatically stand cancelled. Then the applicant

shall surrender before the executing court if any of the

direction is issued by this Court is breached.

v) Parties to act upon the authenticated copy of this order

( S. G. MEHARE ) JUDGE

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