Bombay High Court
Harsh Krishanchander Kalra vs State Of Maharashtra And Anr on 12 December, 2023
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
Gokhale 1 of 4 1-apl-1574-23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1574 OF 2023
Harsh Krishanchander Kalra ..Applicant.
Versus
The State of Maharashtra & Anr. ..Respondents
__________
Mr. Ashok Kumar Dubey a/w. Anil Kumar Pandey i/b. SAVJ Law
Solutions for Applicant.
Mr. Arfan Sait, APP for State/Respondent No.1.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 12 DECEMBER 2023
PC :
1. The Applicant has challenged the order dated
02.12.2023 passed by the learned Principal Judge, Sessions Court,
Mumbai, issuing N.B.W. against the applicant in Criminal Appeal
No.736 of 2019. The applicant was the original accused in
C.C.No.9691/SS/2016 before the Metropolitan Magistrate, 33rd
Court, Ballard Pier, Mumbai. The prosecution was U/s.138 of the
Negotiable Instruments Act for dishonour of the cheque dated
30.08.2016 for Rs.22,97,961/-. The applicant was convicted under
that section and was sentenced to suffer S.I. for one year and to
pay an amount of Rs.45,95,922/- along with simple interest at the
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rate 9%p.a. from the date of complaint till realization of the
cheque amount and in default to suffer S.I. for three months. The
applicant challenged the said Judgment and order of conviction
and sentence dated 03.09.2018 before the Court of Sessions at
Greater Mumbai, vide Criminal Appeal No.736 of 2019. The
applicant was granted bail pending Appeal vide the order dated
20.03.2019 passed by the Additional Sessins Judge, Greater
Mumbai.
2. Learned counsel for the applicant stated that the
applicant has deposited 20% amount of the cheque amount as
directed by the Appellate Court. Learned counsel submitted that
the Appeal thereafter proceeded on various occasions and on most
of those occasions the learned counsel for the Appellant was
present. In fact, the final arguments were also heard on
25.04.2022. Thereafter the Presiding Officer was changed and,
therefore, the Appeal remained pending. Ultimately, on
02.12.2023, the advocate for the applicant was not present and,
therefore, the N.B.W. was issued against the applicant. On
02.12.2023, following order was passed:
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"Appellant and advocate absent. Mr. Anil, Vice
President of respondent present. Adv. Veerendra Patil
for respondent present. Issue NBW against the
appellant. Issue notice to the advocate for appellant.
Adjourned on 09.01.2024 for report of NBW. Later on
same appearance. Adv. Shweta Yadav i/b. SAVJ Law
Solutions for appellant is present and filed exemption
application. TOR and marked as Exh.4. After the
NBW order has been passed, application has been
preferred by the Ld. Counsel for applicant for grant of
exemption. No reasons has been stated as to why the
appellant is unable to attend. The appellant is
remaining away from the proceeding of the court
willingly and delegently and avoiding process of the
court. As no grounds has made out for, exemption
application stands rejected. NBW stands. Already
adjourned on 09.01.2024."
3. Learned counsel for the applicant submitted that the
applicant has no intention to avoid due process of law. He
categorically made a statement before this Court that the applicant
shall remain present before the Appellate court on the next date
i.e. on 09.01.2024. The statement is recorded and accepted. In
view of this statement and also taking into account the fact that
the advocate of the applicant was present on most of the
occasions, some protection can be granted to the applicant.
Learned counsel for the applicant has shown applicant's bonafide
intention that applicant would remain present on the next occasion
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before the Appellate Court.
4. Hence, the following order:
ORDER
i) Issue Notice to the Respondent No.2, returnable
on 16.01.2024.
ii) Till then, the N.B.W. issued against the applicant
vide the order dated 02.12.2023 passed by the
learned Principal Judge, Sessions Court, Mumbai,
in Criminal Appeal No.736 of 2019, is stayed by
way of ad-interim relief.
iii) This order shall operate till 16.01.2024.
iv) In the meantime, it shall be open for the
applicant to attend the Court on 09.01.2024 and
prefer an application for cancellation of N.B.W.
v) Learned Judge shall consider that request after
hearing both the sides.
vi) Stand over to 16.01.2024.
(SARANG V. KOTWAL, J.)
