Bombay High Court
Shri Jitendra Pahilajray Lalchandani vs Shri Vinod Prakash Mahesha And Anr on 17 October, 2025
2025:BHC-AS:46118
21-REVN-235-2025+.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
REVISION APPLICATION NO. 235 OF 2025
Shri. Jitendra Pahilajray Lalchandani ...Applicant
Versus
Shri. Vinod Prakash Mahesha & Anr. ...Respondents
WITH
INTERIM APPLICATION NO. 1989 OF 2025
IN
REVISION APPLICATION NO. 235 OF 2025
WITH
REVISION APPLICATION NO. 226 OF 2025
WITH
INTERIM APPLICATION NO. 2170 OF 2025
IN
REVISION APPLICATION NO. 226 OF 2025
WITH
REVISION APPLICATION NO. 227 OF 2025
WITH
INTERIM APPLICATION NO. 2171 OF 2025
IN
REVISION APPLICATION NO. 227 OF 2025
WITH
REVISION APPLICATION NO. 234 OF 2025
WITH
INTERIM APPLICATION NO. 1988 OF 2025
IN
REVISION APPLICATION NO. 234 OF 2025
WITH
REVISION APPLICATION NO. 236 OF 2025
WITH
INTERIM APPLICATION NO. 1990 OF 2025
IN
REVISION APPLICATION NO. 236 OF 2025
WITH
REVISION APPLICATION NO. 237 OF 2025
Gitalaxmi Page 1 of 12
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WITH
INTERIM APPLICATION NO. 1994 OF 2025
IN
REVISION APPLICATION NO. 237 OF 2025
WITH
REVISION APPLICATION NO. 238 OF 2025
WITH
INTERIM APPLICATION NO. 1995 OF 2025
IN
REVISION APPLICATION NO. 238 OF 2025
WITH
REVISION APPLICATION NO. 239 OF 2025
WITH
INTERIM APPLICATION NO. 1964 OF 2025
IN
REVISION APPLICATION NO. 239 OF 2025
WITH
REVISION APPLICATION NO. 240 OF 2025
WITH
INTERIM APPLICATION NO. 1996 OF 2025
IN
REVISION APPLICATION NO. 240 OF 2025
WITH
REVISION APPLICATION NO. 241 OF 2025
WITH
INTERIM APPLICATION NO. 1997 OF 2025
IN
REVISION APPLICATION NO. 241 OF 2025
WITH
REVISION APPLICATION NO. 242 OF 2025
WITH
INTERIM APPLICATION NO. 1998 OF 2025
IN
REVISION APPLICATION NO. 242 OF 2025
WITH
REVISION APPLICATION NO. 246 OF 2025
WITH
INTERIM APPLICATION NO. 2000 OF 2025
IN
REVISION APPLICATION NO. 246 OF 2025
WITH
REVISION APPLICATION NO. 244 OF 2025
Gitalaxmi Page 2 of 12
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WITH
INTERIM APPLICATION NO. 1999 OF 2025
IN
REVISION APPLICATION NO. 244 OF 2025
WITH
REVISION APPLICATION NO. 250 OF 2025
WITH
INTERIM APPLICATION NO. 2014 OF 2025
IN
REVISION APPLICATION NO. 250 OF 2025
__________
Mr. Sumedh Shriram Modak, learned Advocate for the Applicant.
Mrs. Geeta P. Mulekar, learned Addl.P.P. for the State/Respondent.
Mr. P. C. Mohite, learned Advocate for Respondent No. 1/Original
Complainant.
__________
CORAM : ASHWIN D. BHOBE, J.
DATE : 17th OCTOBER, 2025.
P.C. :
1. Heard Mr. Sumedh Shriram Modak, learned Advocate for the
Applicant, Mr. Mohite, learned Advocate for Respondent No. 1 and
Mrs. Geeta P. Mulekar, learned Addl.P.P. for the State/Respondent.
Learned Advocates jointly submit that since the points/issues raised
in all these Criminal Revision Applications are similar, all these
Criminal Revision Applications can be heard together and disposed
off by a common order. They submit that Criminal Revision
Application No. 235 of 2025 be considered as the lead Criminal
Revision Application. In the light of the above request, this Court
has proceeded to hear all these Criminal Revision Applications
together and the same are being disposed of by this common order.
2. Respondent No. 1 (Complainant) instituted Summary
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Criminal Case No. 2988 of 2006 before the Court of Judicial
Magistrate First Class, Ulhasnagar, against the Applicant (Accused)
for the offences punishable under Section 138 of the Negotiable
Instruments Act, 1881 ("NI Act").
3. Vide judgment and order dated 25 th November, 2019, the 3rd
Judicial Magistrate First Class, Ulhasnagar, convicted the Applicant
for the offences punishable under Section 138 of NI Act and
sentenced the Applicant to undergo simple imprisonment for one
month and to pay an amount of Rs. 3,00,000/- towards
compensation under Section 357(3) of the Code of Criminal
Procedure, 1973 ("Cr.P.C.") within a period of 2 months, failing
which to undergo simple imprisonment for one month.
4. Dissatisfied with the judgment and order dated 25th
November, 2019, Applicant filed Criminal Appeal No. 06 of 2022
before the Sessions Court at Kalyan, District-Thane. Along with the
said Criminal Appeal, Applicant filed an Application under Section
389 of the Cr.P.C. at Exhibit-4 seeking suspension of sentence and
Application at Exhibit-6 seeking release on bail pending the
Criminal Appeal.
5. Vide order dated 29th February, 2020, the Additional Sessions
Judge allowed the Applications at Exhibits-4 & 6, thereby
suspending the sentence imposed by judgment and order dated 25 th
November, 2019 and released the Applicant on bail, subject to the
Applicant depositing 30% of the amount of compensation before
the Court within 15 days.
6. The condition of deposit of 30% of the compensation amount
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was relaxed at the instance and request of the Applicant vide order
dated 13th January, 2023, by making the same as 20% deposit of
the compensation amount. Undertaking of the Applicant was
recorded by the Additional Sessions Judge in its order dated 13 th
January, 2023, which reads as follows :-
".....The appellant in person gave undertaking before this
Court that within shortest period, he shall deposit the
amount. The undertaking is accepted, the appellant is
directed to deposit 20% of the total amount of
compensation in all cases within the period of two months
and out of the total amount, he shall deposit 50% amount
within a period of one month from today and remaining
50% amount in the next month i.e. the total amount within
the period of two months from today. The applications filed
by the appellant in all these appeals for relaxation of the
compensation amount accordingly stand allowed."
7. Applicant failed to comply with the order dated 13th January,
2023, as a result of which the Additional Sessions Judge vide order
dated 7th February, 2024 vacated the order of suspension of
sentence and directed the Judicial Magistrate First Class to take
action in accordance with law.
8. Vide order dated 28th February, 2025, the Additional Sessions
Judge dismissed the Appeals filed by the Appellant. Order dated
28th February, 2025 is extracted hereinbelow :-
"COMMON ORDER BELOW EXH. 1 IN CRI. APPEAL NO. 3/2020
ΤΟ 16/2020
All these appeals are filed by the appellant/accused for
challenging the judgment and order of Trial Court in which the
appellant/accused came to be convicted for the offence punishable
under Sec. 138 of N.I. Act. Immediately, he filed application for
suspending the sentence. As per Court suspended the sentence with
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condition to deposit 20% amount out of compensation amount
within stipulated period.
Despite of sufficient opportunity from time to time,
appellant/accused failed to deposit 20% amount of compensation.
Hence, by passing specific order by my Ld. predecessor, order of
suspension in SCC no. 3092/2006, 2984/2006, 2986/2006,
2987/2006, 2988/2006, 3578/2006, 2989/2006, 3459/2006,
3579/2006, 3094/2006, 3093/2006, 3658/2006, 126/2007 and
127/2007 was vacated and Trial Court informed for necessary
action on 7/2/2024. Since then till today appellant not deposited
single rupee in this proceeding, hence, on last day Advocate for the
respondent filed application for dismissal of the appeal.
I have called say from the appellant/accused, but today
appellant is absent. His advocate filed his say and prayed to give
some time. But admittedly, this appeal are pending since the year
2020. Approximately near about 5 years old. Appellant neither
deposited the amount nor argued the appeal. In such
circumstances, I have no alternative but to dismiss the appeal.
Hence, I proceed to pass following order :
Order
1. Appeals are dismissed.
2. Ld. Lower Court be informed accordingly."
9. Common Order dated 28th February, 2025, passed by the
Additional Sessions Judge dismissing the Appeals filed by the
Applicant, are subject matter of the present Revision Applications.
10. Mr. Modak, learned Advocate for the Applicant submits that
non-compliance of the order of deposit of the amount directed by
the Additional Sessions Judge vide order dated 29 th February, 2020
read with the order dated 13th January, 2023, could not be a
ground for dismissal of the substantive Appeal filed by the
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Applicant under Section 374 of the Cr.P.C. He submits that the
Appeal filed by the Appellant against his conviction under Section
374 of the Cr.P.C., was a statutory right conferred on the Applicant,
which right is not dependent on breach or non-compliance of
conditions imposed while suspending sentence under Section 398
of the Cr.P.C. He submits that the Additional Sessions Judge ought
to have granted the request of the Applicant and adjourned the
matter for arguments. He submits that the order dated 28 th
February, 2025 dismissing the Appeal without it being heard on
merits, has caused grave and serious prejudice to the Applicant.
11. Mr. Mohite, learned Advocate for Respondent No. 1 submits
that the Appeals were filed in the year 2020 and were pending for
5 years. He submits that the Applicant neither complied with the
conditions imposed while suspending the sentence nor with the
oral undertaking given by him, as recorded in the order dated 13 th
January, 2023 as such no indulgence is warranted to such a
litigant. He submits that the Applicant having failed to comply
with the order passed by the Appellate Court while suspending the
sentence and further failure to remain present before the Court on
28th February, 2025, left no option to the Additional Sessions Judge
but to dismiss the Appeals. He submits that Respondent No. 1 is
made to suffer by the Applicant as Respondent No. 1 is denied of
his lawful dues payable by the Applicant which are subject matter
of the cheque/s in the Appeal/s. He submits that grave prejudice
and loss would be caused to Respondent No. 1 if the Criminal
Revision Applications are entertained and therefore, he prayed for
dismissal of the Criminal Revision Applications.
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12. Perused the records with the assistance of Advocates.
13. Perusal of the order dated 28th February, 2025 indicates the
Appeals filed by the Appellant being dismissed on two counts,
firstly, absence of the Appellant and secondly for non-deposit of the
amount.
14. Question therefore for consideration in this Revision
Applications is "whether the statutory Appeals filed by the
Applicant under Section 374 of the Cr.P.C. could be dismissed in
view of the absence of the Appellant?" and "whether non-
compliance of the condition of deposit imposed while suspending
the sentence under Section 389 of the Cr.P.C., can be a ground for
dismissal of the statutory Appeals?".
15. The Hon'ble Supreme Court in the case of Dilip S. Dahanukar
v/s. Kotak Mahindra Co. Ltd.1, in paragraph no. 12 has held as
follows :-
"12. An appeal is indisputably a statutory right and an offender
who has been convicted is entitled to avail the right of appeal
which is provided for under Section 374 of the Code. Right of
appeal from a judgment of conviction affecting the liberty of a
person keeping in view the expansive definition of Article 21 is also
a fundamental right. Right of appeal, thus, can neither be
interfered with or impaired, nor can it be subjected to any
condition."
16. The Hon'ble Supreme Court in the case of Surinder Singh
Deswal v/s. Virender Gandhi and Another 2, in paragraph 20 has
observed as follows :-
1. (2007) 6 SCC 528.
2. (2020) 2 SCC 514.
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"20. It is for the appellate court who has granted suspension of
sentence to take call on non-compliance and take appropriate decision.
What order is to be passed by the appellate court in such circumstances
is for the appellate court to consider and decide. However, non-
compliance of the condition of suspension of sentence is sufficient to
declare suspension of sentence as having been vacated."
17. In the instant case the Additional Sessions Judge vide order
dated 7th February, 2024 had vacated the order suspending the
sentences in the Appeals filed by the Applicant and directing the
Court of Judicial Magistrate First Class to take appropriate action
in accordance with law. Thus, the Additional Sessions Judge had
exercised his discretion and declared the suspension of sentence, as
vacated. Having done so, the Additional Sessions Judge was
required to consider the Appeals filed by the Applicant on its own
merits and independent of the default committed by the Applicant
in complying with the conditions imposed by the Court in its
orders suspending the sentence.
18. The Additional Sessions Judge by order dated 28 th February,
2025 has observed that the Applicant was absent and the Advocate
for the Applicant had sought for time. Despite the said
observations, the Additional Sessions Judge had proceeded to
dismiss the Appeals on the ground of non-deposit and the
Applicant having failed to argue the Appeals.
19. The Hon'ble Supreme Court in the case of Mohd. Sukur Ali
v/s. State of Assam3, in paragraph nos. 5, 9 & 12 has held as
follows :-
3. (2011) 4 SCC 729.
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"5. We are of the opinion that even assuming that the
counsel for the accused does not appear because of the
counsel's negligence or deliberately, even then the court
should not decide a criminal case against the accused in the
absence of his counsel since an accused in a criminal case
should not suffer for the fault of his counsel and in such a
situation the court should appoint another counsel as
amicus curiae to defend the accused. This is because liberty
of a person is the most important feature of our
Constitution. Article 21 which guarantees protection of life
and personal liberty is the most important fundamental
right of the fundamental rights guaranteed by the
Constitution. Article 21 can be said to be the "heart and
soul" of the fundamental rights.
9. In Maneka Gandhi v. Union of India [(1978) 1 SCC
248 : AIR 1978 SCC 597] , it has been held by a
Constitution Bench of this Court that the procedure for
depriving a person of his life or liberty should be fair,
reasonable and just. We are of the opinion that it is not fair
or just that a criminal case should be decided against an
accused in the absence of a counsel. It is only a lawyer who
is conversant with law who can properly defend an accused
in a criminal case. Hence, in our opinion, if a criminal case
(whether a trial or appeal/revision) is decided against an
accused in the absence of a counsel, there will be violation
of Article 21 of the Constitution.
12. We are fully in agreement with Mr. Seervai
regarding his above observations. The Founding Fathers of
our Constitution were themselves freedom fighters who had
seen civil liberties of our people trampled under foreign
rule, and who had themselves been incarcerated for long
period under the formula "Na vakeel, na daleel, na appeal"
(No lawyer, no hearing, no appeal). Many of them were
lawyers by profession, and knew the importance of counsel,
particularly in criminal cases. It was for this reason that they
provided for assistance by counsel under Article 22(1), and
that provision must be given the widest construction to
effectuate the intention of the Founding Fathers."
20. Considering the position of law enunciated by the Hon'ble
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Supreme Court, the order dated 28 th February, 2025 passed by the
Additional Sessions Judge is unsustainable. The Additional
Sessions Judge ought to have given an opportunity to the Applicant
to advance arguments and ought not to have decided the said
Appeals in a haste. Applicant has been denied of his valuable right
of appeal. Both the reasons assigned by the Additional Sessions
Judge are untenable and liable to be set aside.
21. Though the order dated 28th February, 2025, is found to be
bad in law, however, the conduct of the Applicant has resulted in
causing prejudice to Respondent No. 1, which is required to be
undone by compensating Respondent No. 1. The Applicant is
therefore directed to pay cost of Rs. 50,000/- to Respondent No. 1
as a condition precedent. Cost shall be paid within a period of 3
weeks from today.
22. In view of the above, all Criminal Revision Applications are
allowed on the following terms :-
a. The common order dated 28th February, 2025 passed by
the Additional Sessions Judge, Kalyan in all the Appeals, are
quashed and set aside, consequently the Appeals are restored
on the file of the Additional Sessions Judge, Kalyan for
hearing de novo, after affording an opportunity to the
parties. Restoration of the Appeals are subject to the
Applicant paying cost of Rs. 50,000/- to Respondent No. 1 on
or before 7th November, 2025.
b. Parties to appear before the Additional Sessions Judge,
Kalyan on 7th November, 2025. Applicant shall remain
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present before the Additional Sessions Judge, Kalyan
in-person on 7th November, 2025 and produce the
acknowledgment receipt of payment of Rs. 50,000/- to
Respondent No. 1. It is only upon the payment of the said
amount with proof being placed before the Additional
Sessions Judge, Kalyan that the Appeals would stand
restored.
c. Failure to pay the cost of Rs. 50,000/- within the
stipulated time referred in paragraph 21(b) hereinabove
would result in dismissal of the present Criminal Revisions
Applications with cost of Rs. 10,000/- each and restoration of
the order dated 28th February, 2025.
23. All Criminal Revision Applications stand disposed of
accordingly. In view of the Criminal Revision Applications are
disposed of, all pending Interim Applications become infructuous,
stand disposed of.
[ASHWIN D. BHOBE, J.]
