Sandip Eknath Ghadge vs State Of Gujarat
2022 Latest Caselaw 5868 Guj

     R/SCR.A/6207/2022                            ORDER DATED: 04/07/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 6207 of 2022

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                         SANDIP EKNATH GHADGE
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MR KUMAR H TRIVEDI(9364) for the Respondent(s) No. 2
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                              Date : 04/07/2022

                               ORAL ORDER

1. Rule returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 - State and Mr.Kumar H. Trivedi, learned counsel waives service of notice of Rule on behalf of respondent No.2.

2. With the consent of learned counsel appearing for the respective parties, the matter is taken up for final hearing today.

3. By way of this petition, the petitioners - original accused have prayed for following reliefs :

"A) That the Hon'ble court may please to admit this Special Criminal Application.

B) That this Hon'ble court may please to allow this Special Criminal Application by issuing appropriate writ, order or direction by quashing

R/SCR.A/6207/2022 ORDER DATED: 04/07/2022

and setting aside the order of issuance of non- bailable warrant dated 09.05.2022 at Annexure-A passed by the LD. Judicial Magistrate, Sabarkantha in Criminal Case No. 34 of 2020 and also be pleased to grant protection to the petitioner to file appeal before the concerned court in the interest of justice.

C) The Hon'ble Court may also please to allow this application by directing 'not to take any coercive action' against the petitioner pursuant to issuance of non-bailable warrant passed by the Ld. Judicial Magistrate, Talod, Sabarkantha in Criminal Case No. 34 of 2020 dated 09.05.2022 till pendency of the petition in the facts and circumstances of the present case.

D) Pending admission, hearing and till final disposal of this petition, the Hon'ble court may please to grant stay as to execution, implementation and further operation of the order passed in Criminal Case No. 34 of 2020 dated 09.05.2022 passed by the LD. Judicial Magistrate, Sabarkantha at Annexure-A.

E) Grant such other and further relief as deemed just and proper by this Hon'ble court in the interest of justice."

4. Facts of the case, as can be gathered from the material produced on record, are as under :

4.1 The respondent No.2 - original complainant filed a private complaint being Criminal Case No.34 of 2020 under the provisions of the Negotiable Instruments Act, 1881 (for short 'the Act') on account of dishonour of Cheque of Rs.18,75,933/- issued by the petitioner.

4.2 Upon summons being issued to the petitioner, the petitioner engaged a lawyer and his plea was recorded vide

R/SCR.A/6207/2022 ORDER DATED: 04/07/2022

Exh.10. The said Criminal Case No.34 of 2020 came to be disposed of by the learned Judicial Magistrate, Talod, Sabarkantha on 31.1.2022 and the petitioner was convicted which came to be challenged by the petitioner by filing Criminal Appeal No.39 of 2022.

4.3 The appellate court, vide order dated 18.4.2022, allowed the Criminal Appeal No.39 of 2022 and directed the trial court to conclude the criminal case from the stage of recording 313 statement. It was further directed to conclude the criminal case on or before 30.4.2022.

4.4 On 7.5.2022, the trial court conveyed in writing to the petitioner and/or his advocate to remain present on the day of pronouncement of order.

4.5 However, on 9.5.2022, though specifically conveyed in writing, the petitioner and/or his advocate could not remain present, the trial court was pleased to pass an order of conviction under Section 138 of the NI Act and ordered to undergo 2 years SI with fine of Rs.37,15,866/- and in default, to further undergo 3 months SI. The trial court further ordered the petitioner to pay Rs.18,76,933/- to the respondent No.2 with 9% interest. The learned Magistrate further issued Non-Bailable Warrant under Section 70 of the Cr.P.C. as the petitioner was not remained present at the time when the judgment was pronounced.

4.6 The petitioner approached the concerned appellate court by preferring Criminal Appeal along with an application for bail under Section 389 of the Cr.P.C. However, the

R/SCR.A/6207/2022 ORDER DATED: 04/07/2022

registration of the same came to be refused by the appellate court concerned, as the petitioner has not surrendered himself to jail authority pursuant to the issuance of Non- Bailable Warrant by the trial court.

5. Being aggrieved and dissatisfied by the aforesaid, the petitioner is before this Court by way of present petition.

6. I have heard Mr.A.M.Dagli, learned counsel for the petitioner, Ms.Moxa Thakkar, learned Additional Public Prosecutor for the respondent No.1 - State and Mr.Kumar H. Trivedi, learned counsel for the respondent No.2.

7. Mr.A.M.Dagli, learned counsel for the petitioner, submitted that the impugned judgment and order dated 9.5.2022 qua issuance of Non-Bailable Warrant is concerned, the same is illegal and against the provision of law. According to Mr.Dagli, the learned Magistrate, at least, ought to have issued Bailable Warrant upon the petitioner during the trial proceedings, more particularly when the petitioner and his Advocate was not remaining present. Mr.Dagli further submitted that straightaway, issuance of Non-Bailable Warrant, that too after conclusion of the trial proceedings, is completely unjustified and is against the interest of justice. Learned counsel also submitted that preferring an Appeal against the order passed of conviction is a statutory right available to the petitioner. However, to avail the remedy under its statutory rights, the petitioner is left with no option, but to surrender himself to the jail authority pursuant to the Non-Bailable Warrant issued by the trial court and that would amount to gross violation of Article 21 of the Constitution of

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India. Mr.Dagli further submitted that at least, this Court may grant limited indulgence by converting Non-Bailable Warrant into Bailable Warrant, so that the petitioner can approach the learned Magistrate by way of an application under Section 389(3) of the Cr.P.C. for provisional bail so as to enable the petitioner to approach the Sessions Court by way of an Appeal against the conviction and sentence. To substantiate this contention, Mr.Dagli, learned counsel, heavily relied upon the decision of the Coordinate Bench of this Court rendered in Special Criminal Application (Quashing) No.9113 of 2016, decided on 22.2.2017.

7.1 By making above submissions, Mr.Dagli urged this Court to allow the present petition, as prayed for.

8. Per contra, Mr.Kumar H. Trivedi, learned counsel appearing for respondent No.2 - original complainant vehemently opposed the petition, contending that all throughout, the present petitioner had not attended the proceedings at the trial court and also not availed the alternative remedy provided under Section 389(3) of the Cr.P.C. Thus, the petitioner was all throughout negligent and/ or ignored the criminal proceedings and, therefore, this Court may not entertain this petition. Mr.Kumar H. Trivedi further submitted that there is no iota of evidence so as to suggest that the present petitioner has approached the appellate court concerned and in turn, the appellate court has refused to entertain or to register the statutory appeal. Mr.Trivedi further submitted that even today, it is open for the petitioner to approach the trial court for filing an application under Section 389(3) of the Cr.P.C. Thus, this Court may not require

R/SCR.A/6207/2022 ORDER DATED: 04/07/2022

to give any direction in that regard. However, Mr.Trivedi, learned counsel, could not dispute the proposition of law laid down by the Coordinate Bench of this Court in SCR.A No.9113 of 2016, as referred to above.

8.1 By making above submissions, Mr.Trivedi urged this Court to dismiss the petition.

9. Ms.Moxa Thakkar, learned Additional Public Prosecutor for the respondent No.1 - State, adopted the arguments of Mr.Trivedi, learned counsel for the original complainant and thereby, urged this Court to dismiss the petition.

10. I have heard the learned counsel appearing for the respective parties and gone through the material produced on record in detail. No other and further submissions have been made, except what are stated herein-above.

11. At the outset, it is required to be noted that the issue involved in this petition is no more res-integra and squarely covered by the decision of the Coordinate Bench of this Court rendered in Special Criminal Application (Quashing) No.9113 of 2016, decided on 22.2.2017, as referred to above, in somewhat similar set of facts. The Coordinate Bench of this Court has, after considering the decision rendered by the Division Bench in the case of Sharad Jethalal Savla v. State of Gujarat & Ors. [Criminal Misc. Application No.19862 of 2015, decided on 14.11.2016] held as under :

"7. I am inclined to give one opportunity to the applicants herein to appear before the learned 4th Additional Chief Judicial Magistrate, Vadodara

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in person with their advocates. On the day and date the applicants herein appear before the learned Magistrate, it will be open for them to file an application under Section 389(3) of the Cr.P.C. for provisional bail to enable them to prefer a criminal appeal before the Sessions Court against the conviction and sentence. The criminal appeal before the Sessions Court could have been registered only after an appropriate order under Section 389(3) of the Cr.P.C. was passed by the trial Court.

8. In any view of the matter, the non-bailable warrant is converted into a bailable warrant of the sum of Rs.10,000/- (Rupees Ten Thousand only). The applicants are directed to appear before the Court concerned within a period of one week from today and shall furnish a bail of Rs.10,000/- each. If any such application is filed under Section 389(3) of the Cr.P.C., the Court concerned shall pass appropriate orders in accordance with law."

12. In view of the aforesaid, this Court is inclined to pass following directions :

(1) The petitioner shall approach the learned Principal Civil Judge and Judicial Magistrate, First Class, Talod, District - Sabarkantha in person with his Advocate within a period of one week from the date of receipt of writ of this court.

(2) It will be open for him on the day and date he appears before the learned Principal Civil Judge and Judicial Magistrate, First Class, Talod, District - Sabarkantha in person with his Advocate to file an application under Section 389(3) of the Cr.P.C. for provisional bail.

(3) The Non-Bailable Warrant is hereby converted into

R/SCR.A/6207/2022 ORDER DATED: 04/07/2022

Bailable Warrant for a sum Rs.10,000/- (Rupees Ten Thousand only). The petitioner is directed to appear before the concerned Court within a period of one week from the date of receipt of writ of this Court and shall furnish a bail of Rs.10,000/- each.

(4) If any such application is filed under Section 389(3) of the Cr.P.C., the Court concerned shall pass appropriate orders in accordance with law."

13. With the above, present petition stands disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(NIRAL R. MEHTA,J) V.J. SATWARA