Bhavesh Mukundbhai Parikh vs State Of Gujarat
2021 Latest Caselaw 18625 Guj

      R/SCR.A/12003/2021                             ORDER DATED: 21/12/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 12003 of 2021
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                           BHAVESH MUKUNDBHAI PARIKH
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
MS MAITHILI MEHTA, APP (2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                 Date : 21/12/2021

                                  ORAL ORDER

1. Heard Mr. P.P.Majmudar, learned counsel for the petitioner. Though served, respondent No.2 has chosen not to remain present before this Court either in person or through advocate.

2. Rule, returnable forthwith. Ms. Maithili Mehta, learned APP waives service of Rule for the respondent State.

3. The petitioner is convicted by learned 28 th Additional Chief Judicial Magistrate, Vadodara, for the offence under Section 138 of the Negotiable Instruments Act, in Criminal Case No.19028/2017. On the date of pronouncement of impugned judgment and order of conviction, the petitioner remained absent and accordingly, impugned order of conviction was passed by the trial Court.

4. Strong reliance has been placed by Mr.Majmudar on the case of Ishwarbhai Hirabhai Chunara Vs. State of Gujarat (SCR.A- 9112/2016), to submit that on account of issuing non-bailable warrant by the trial Court, the petitioner could not file statutory appeal before the Sessions Court. Mr. Majmudar tendered the copies of the affidavit of service and receipt of payment of cheque amount of Rs.3 lakhs made by the petitioner, which are taken on record.

R/SCR.A/12003/2021 ORDER DATED: 21/12/2021

5. Having heard learned counsel for the petitioner and on perusal of the material placed on record, it appears that at the time of pronouncement of the order of conviction, trial Court issued warrant, as a result of which, the petitioner unable to file an appeal before the Sessions court. Present case is covered by the order passed by a cooperate Bench of this Court in the case of Ishwarbhai Hirabhai Chunara (supra) as referred to above.

6. Thus, the impugned order of non-bailable warrant dated 16.11.2021 be converted into bailable warrant on condition that the petitioner shall appear before the trial Court within a period of 10 (ten days) from today and shall furnish personal bond of Rs.10,000 and one surety of like amount to the satisfaction of the trial Court. The Petitioner is permitted to file an application under Section 389(3) of the Code before the trial Court and in the event of filing of such application, trial Court shall decide the same in accordance with law.

7. In the aforesaid observations and directions, present petition stands disposed of. Rule is made absolute. Direct service is permitted. Registry to issue fresh writ of this order, accordingly.

(ILESH J. VORA,J) SUCHIT