Bombay High Court
Rajiv Sitaram Rane vs Shripad Jagannath Phatak And Anr on 2 August, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:31148
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Digitally
signed by
BALAJI
BALAJI
GOVINDRAO
GOVINDRAO PANCHAL
CRIMINAL APPLICATION NO.1557 OF 2023
PANCHAL Date:
2024.08.06
14:55:19
+0530
Rajiv Sitaram Rane ..Applicant
Versus
Shripad Jagannath Phatak & Anr. ..Respondents
Ms. Neha Rane i/by R. B. Mungekar, for the Applicant.
Ms. Manda Loke, for the Respondent No.1.
Mr. Swapnil V. Walve, APP for the Respondent/State.
CORAM : SARANG V. KOTWAL, J.
DATE : 2nd AUGUST, 2024
P. C.
1. Heard learned counsel for the Applicant as well as
learned counsel for the Respondent No.1.
2. Rule. By consent of the parties, this Application is
decided finally at the admission stage.
3. The Respondent No.1 was the original complainant in
C.C. No.2880/SS/2012 before the Metropolitan Magistrate, 7 th
Court, Dadar, Mumbai. The Applicant was the sole accused. He was
convicted for commission of offence punishable under Section 138
of the NI Act and was sentenced to suffer simple imprisonment of
two months and to pay fine of Rs.10,000/- and in default to suffer
simple imprisonment of 15 days. He was also sentenced to pay fine
of Rs.2,00,000/- and in default to suffer simple imprisonment for
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four months. It was to be given as compensation to the Respondent
No.1.
4. The Applicant wanted to challenge the said impugned
judgment and order dated 23rd October, 2018. However, he did not
approach the Sessions Court immediately. There was a delay of 512
days in filing the Appeal. Therefore, he preferred Misc. Application
No.876 of 2020 for condonation of delay. That Application was
allowed subject to payment of cost of Rs.10,000/- payable to the
complainant. The cost was directed to be paid on or before 4 th
December, 2021. The learned Additional Sessions Judge, Greater
Mumbai, vide his order dated 17th November, 2021 observed that
upon payment of cost, the Appeal shall be registered. It was further
directed that if the Applicant failed to pay the cost before that day,
the said Application would be treated as dismissed without any
separate order to that effect. The Applicant did not pay that cost and
therefore, as per the directions in the operative part of the order
dated 17th November, 2021 passed by the Additional Sessions Judge,
Greater Mumbai, the said Application for condonation of delay
stood automatically dismissed without any separate order with the
effect that the Appeal could not be registered. In the meantime, the
conviction warrant was issued against the Applicant. Therefore, the
prayer is also made for staying of the conviction warrant.
5. Learned counsel for the Applicant submitted that when
the order dated 17th November, 2021 was passed in MA No.876 of
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2020 by Additional Sessions Judge, Greater Mumbai, the Applicant
was in custody for some other case. The Applicant is 70 year old
man and is suffering from severe diabetes. She submitted that in the
interest of justice, the Applicant deserves one opportunity to
challenge the order of conviction as he has a good case on merits.
6. Learned counsel for the Respondent No.1 opposed these
submissions. According to her, at every stage, the Applicant has
shown negligence. He has not shown enough seriousness to pursue
the remedy and he deserves no sympathy.
7. I have considered these submissions.
8. Since the Applicant was in custody on the date when the
order was passed by the Additional Sessions Judge, Greater
Mumbai, he might not have been in a position to comply with the
order within the time limit fixed for him. The Applicant is 70 year
old man with severe diabetes. This is an additional feature, which I
am taking into consideration. Therefore, in the interest of justice, it
would be appropriate, if the Applicant's Appeal before the Sessions
Court is decided on merits of the matter. Therefore, I am inclined to
allow this Application and inclined to stay conviction warrant for a
limited period, so that the Applicant can approach the Sessions
Court. Hence, the following order :-
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ORDER
I) The order dated 17th November, 2021 passed by the
Additional Sessions Judge, Greater Mumbai in MA No.876
of 2020 is modified to the extent that the date of payment
of cost shall now be 20th September, 2024.
II) The rest of the clauses in the operative part of the said
order shall remain as they are.
III) The conviction warrant issued against the Applicant is
stayed upto 20th September, 2024, subject to the further
orders by the Sessions Court.
IV) The Application is disposed of.
(SARANG V. KOTWAL, J.)
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