Hirenkumar Vinodchandra Modi vs State Of Gujarat
2022 Latest Caselaw 9068 Guj

      R/SCR.A/8943/2022                               ORDER DATED: 13/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 8943 of 2022

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                          HIRENKUMAR VINODCHANDRA MODI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
MR DHVALKUMAR R PRAJAPATI(12251) 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 : 13/10/2022

                                  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. Dhaval Prajapati, 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 :

"(17)(A) Your Lordships may be pleased to issue a writ of certiorari / mandamus or a writ in the nature of certiorari / mandamus or any other appropriate writ, order or directions quashing and setting aside

R/SCR.A/8943/2022 ORDER DATED: 13/10/2022

the issuance of non-bailable warrant (which fact is recorded in Roznama on 04.08.2022) passed below Exh. 15 by learned 3 rd Additional Chief Judicial Magistrate, Bharuch, in Criminal Case No.4962 of 2022 (at Annexure-A (colly) hereto and further be pleased to permit the petitioner to suspend the sentence imposed upon the petitioner vide judgement and order dated 04.08.2022 passed below Exh. 15 by learned 3rd Additional Chief Judicial Magistrate, Bharuch, in Criminal Case No.4962 of 2022 (at Annexure-A (colly) hereto) so that the petitioner can prefer appeal before the learned appellate court in the interest of justice.

(B) during pendency and final disposal of the present petition, Your Lordships may be pleased to stay further operation, implementation and execution of the impugned order dated 04.08.2022 passed below Exh. 15 by learned 3rd Additional Chief Judicial Magistrate, Bharuch, in Criminal Case No.4962 of 2022 (at Annexure-A (colly) hereto), whereby non-bailable warrant is issued (which fact is recorded in Roznama on 04.08.2022);

(C) Whereby non-bailable warrant has been issued against the petitioner;

(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."

[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.4862 of 2022 under the provisions of

R/SCR.A/8943/2022 ORDER DATED: 13/10/2022

the Negotiable Instruments Act, 1881 (for short 'the Act') on account of

dishonour of Cheque of Rs.5,50,000/- issued by the petitioner.

[4.2] The said Criminal Case came to be disposed of by the learned 3 rd

Additional Chief Judicial Magistrate, Bharuch vide judgment and order

dated 4th August 2022 and the petitioner was convicted and ordered to

undergo simple imprisonment for a period of one year and imposed a

fine of Rs.10,000/- and in default of payment of fine, the petitioner to

undergo further simple imprisonment for a period of thirty days. As the

petitioner was not present on the date pronouncement of the aforesaid

judgement and order of conviction, the learned Magistrate issued non-

bailable warrant under Section 70 of the Cr.P.C. against the petitioner.

[5] Being aggrieved and dissatisfied by the aforesaid, the petitioner is

here before this Court by way of present petition.

[6] I have heard Mr. P. P. Majumudar, learned advocate for the

petitioner, Ms. Moxa Thakkar, learned Additional Public Prosecutor for

the respondent No.1 - State and Mr. Dhaval Prajapati, learned advocate

for the respondent No.2.

[7] Mr. Majmudar, learned advocate for the petitioner submitted that

the impugned judgment and order dated 4th August 2022 qua issuance of

R/SCR.A/8943/2022 ORDER DATED: 13/10/2022

Non-Bailable Warrant is concerned, the same is illegal and against the

provision of law. According to Mr. Majmudar, 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. Majmudar 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 advocate 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 India. Mr. Majmudar 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. Majmudar, learned

advocate, heavily relied upon the decision of the Coordinate Bench of

R/SCR.A/8943/2022 ORDER DATED: 13/10/2022

this Court rendered in Special Criminal Application (Quashing) No.9112

of 2016 decided on 22nd February 2017.

[8] Mr. Majmudar, learned advocate for the petitioner, filed affidavit-

in-rejoinder.

[9] By making above submissions, Mr. Majmudar urged this Court to

allow the present petition, as prayed for.

[10] Mr. Dhaval Prajapati, learned advocate appearing for the

respondent No.2 - original complainant, instead of arguing the matter

on merits, has prayed this Court that an appropriate costs be imposed on

the petitioner towards the costs of litigation. Mr. Prajapati, learned

advocate could not dispute the proposition of law laid down by the

Coordinate Bench of this Court in Special Criminal Application No.9112

of 2016, as referred to above.

[11] By making above submissions, Mr. Prajapati urged this Court to

pass necessary orders.

[12] Ms. Moxa Thakkar, learned Additional Public Prosecutor for the

respondent No.1 - State, adopted the arguments of Mr. Prajapati,

learned counsel for the original complainant and thereby, urged this

Court to dismiss the petition.

R/SCR.A/8943/2022 ORDER DATED: 13/10/2022

[13] 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.

[14] 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.9112 of 2016, decided on 22 nd February

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 14th November 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 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

R/SCR.A/8943/2022 ORDER DATED: 13/10/2022

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."

[15] In view of the aforesaid, this Court is inclined to pass following

directions :

(1) The petitioner shall approach the learned 3 rd Additional Chief

Judicial Magistrate, Bharuch 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 3rd Additional Chief Judicial Magistrate, Bharuch 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 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






       R/SCR.A/8943/2022                                   ORDER DATED: 13/10/2022




            Cr.P.C.,      the   Court    concerned    shall    pass       appropriate

            orders in accordance with law.


(5)         The petitioner shall deposit an amount of Rs.15,000/- before

the concerned Trial Court towards the costs of litigation.

[16] With the above, present petition stands disposed of. Rule is made

absolute to the aforesaid extent. Direct service is permitted.

(NIRAL R. MEHTA,J) CHANDRESH