M/S Kamal Corporation Through Its ... vs State Of Gujarat
2022 Latest Caselaw 7663 Guj

      R/CR.RA/250/2022                                       ORDER DATED: 07/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 250 of 2022

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     M/S KAMAL CORPORATION THROUGH ITS AUTHORIZED OFFICER
                    SURYA PRAKASH SOMANI
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2
MR. MANAN BHATT(6535) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                  Date : 07/09/2022

                                   ORAL ORDER

1. By way of this revision application, the applicants have

prayed to quash and set aside the judgment and order dated

09.09.2019 passed by the learned 25th Addl. Chief Judicial

Magistrate, Vadodara in Criminal Case No.6932 of 2018 as also

the order dated 17.07.2021 passed by the learned 2 nd Addl.

Sessions Judge, Vadodara below application Exhibit-1 in

Criminal Appeal No.261 of 2019 and the order dated

20.01.2022 passed by the lower appellate Court below

application in Criminal Misc. Application preferred for

restoration of Criminal Appeal No.261 of 2019.

R/CR.RA/250/2022 ORDER DATED: 07/09/2022

2. The facts in brief are that the applicants herein were

convicted for the offence under Section 138 of the Negotiable

Instruments Act, 1881 vide judgment and order dated

09.09.2019 passed by the learned 25th Addl. Chief Judicial

Magistrate, Vadodara in Criminal Case No.6932 of 2018 and

were sentenced to undergo imprisonment for six months and to

pay compensation of Rs.24,52,095/- to the respondent-

complainant. Against the said judgment and order of conviction

and sentence, the applicants preferred appeal being Criminal

Appeal No.261 of 2019 before the lower appellate Court.

However, as the applicants had deposited only Rs.1,30,000/- as

against Rs.4,90,419/-, which is the amount equivalent to 20%

of the disputed cheque, Criminal Appeal No.261 of 2019 filed

by the applicants came to be dismissed by the lower appellate

Court vide order dated 17.07.2021 passed below Exhibit-1 in

Criminal Appeal No.261 of 2019. Thereafter, the applicants

preferred application seeking restoration of the criminal appeal;

however, the said application came to be rejected vide order

R/CR.RA/250/2022 ORDER DATED: 07/09/2022

dated 20.01.2022. Hence, this revision.

3. Heard learned advocates on both the sides. The

respondent No.2-original complainant has filed Affidavit-in-

reply in this matter wherein, in paragraph-5, it has been

averred that since the applicants have already deposited

amount equivalent to 40% of the cheque amount before the

trial Court concerned, the respondent No.2 has no objection if

this Court orders restoration of Criminal Appeal No.261 of

2019 on the file of the lower appellate Court only for the

purpose of its adjudication on merits after hearing both the

sides.

4. Considering the averments made in the Affidavit-in-reply

filed by the respondent-complainant and since the applicants

have already deposited 40% of the cheque amount, in the

interest of justice, it would be appropriate to direct the lower

appellate Court to adjudicate the appeal preferred by the

applicants on merits.

R/CR.RA/250/2022 ORDER DATED: 07/09/2022

5. For the foregoing reasons, the application is allowed. The

impugned orders dated 17.07.2021 and 20.01.2022 passed by

the lower appellate Court are quashed and set aside. The

Criminal Appeal No. 261 of 2019 is ordered to be restored on

the file of the lower appellate Court and the lower appellate

Court is directed to adjudicate the said appeal on merits and

being uninfluenced by the observations made by this Court in

this order and also by the fact that this Court has quashed its

earlier two orders. It is made clear that this Court has not

entered into the merits of the case and has quashed the two

orders only on account of the fact that the applicants have

deposited 40% of the cheque amount. With the above

observations, the application stands disposed of. Rule is made

absolute to the above extent.

(SAMIR J. DAVE, J)

PRAVIN KARUNAN