Aartiben Kalpeshbhai Raval vs State Of Gujarat
2023 Latest Caselaw 5488 Guj

                                                                                          NEUTRAL CITATION




    R/CR.RA/966/2023                                      ORDER DATED: 01/08/2023

                                                                                          undefined




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL REVISION APPLICATION NO. 966 of 2023

==========================================================
                        AARTIBEN KALPESHBHAI RAVAL
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR.KISHAN PRAJAPATI(7074) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 01/08/2023

                                  ORAL ORDER

[1] Draft amendment is allowed. Mr. Kishan

Prajapati, learned advocate for the applicant

submits that in compliance of the order in

delay condonation application on 28.7.2023,

20% of the amount has been deposited which

comes to Rs.64,000/- in Criminal Appeal

no.347/22. A copy of the receipt of the Nazir

issued on 31.7.2023 reflects the said amount.

[2] The challenge is given by the accused to the

order of issuance of warrant for execution,

operation and implementation of the sentence

NEUTRAL CITATION

R/CR.RA/966/2023 ORDER DATED: 01/08/2023

undefined

passed by the learned 11th Additional Chief

Judicial Magistrate, Special Negotiable Court,

Jamnagar in Criminal Case no.7512/21 dated

6.10.2022 where the said order of issuance of

warrant for execution of the sentence was

passed by the learned Appellate Judge in

Criminal Appeal no.347/22.

[3] Mr. Kishan Prajapati submits that the present

revisionist had preferred the appeal

challenging the conviction and sentence passed

by the learned 11th Additional Chief Judicial

Magistrate in Criminal Case no.7512/2021 and

the order below Exh.5 was passed on 22.11.2022

by the learned 3rd Additional Sessions Judge,

Jamnagar on releasing the present applicant-

revisionist on bail by suspending the sentence

with a condition of depositing Rs.64,000/-

within 60 days and the receipt of the same was

ordered to be produced in the appeal

proceedings.

NEUTRAL CITATION

R/CR.RA/966/2023 ORDER DATED: 01/08/2023

undefined

[4] Mr. Kishan Prajapati submits that because of

financial crunch, the applicant lady could not

manage the amount as her son was also facing

the criminal proceedings and thus, could not

pay the amount in time and thereafter, the

complainant moved the Appellate Court making a

prayer to cancel the bail and send the

applicant to serve the sentence. The learned

3rd Additional Sessions Judge on 31.3.2023

cancelled the bail and vacated suspension of

sentence and ordered for directing the learned

Trial Court to execute and implement the

judgment and order of conviction and sentence.

[5] It is submitted that the learned Appellate

Judge could have proceeded in terms of

provision of Section 431 of Cr.P.C. and thus,

submits that the recovery could be made as

provided under Section 421 of Cr.P.C.

[6] Section 148 of the Negotiable Instruments Act,

1881 gives power to the Appellate Judge to

NEUTRAL CITATION

R/CR.RA/966/2023 ORDER DATED: 01/08/2023

undefined

pass an order to deposit such sum which shall

be minimum of 20% of the fine of compensation

awarded by the learned Trial Court and that

amount payable shall be in addition to the

interim compensation paid by the appellant

under Section 143. The said Section 148 does

not make any specific provision regarding the

recovery of the said amount as laid down under

Section 143A Cr.P.C. where in case the accused

fails to deposit the interim compensation

money then in view of sub-section (5) of

Section 143A of the Act, the amount would be

recovered as if the fine under Section 421 of

Cr.P.C. which would mean that the trial would

proceed even in failure of the payment of the

interim compensation subject to recovery as

provided under Section 421.

[7] In M/s. Ginni Garments & Anr. v. M/s. Sethi

Garments & Anr., 2019 (2) RCR (Criminal) 833,

it has been observed that the procedure for

recovery of fine or compensation from a

NEUTRAL CITATION

R/CR.RA/966/2023 ORDER DATED: 01/08/2023

undefined

convict in pending appeal already existed in

Cr.P.C. even before advent of the provision as

contained in Section 148 of the Act. Hence, no

new aspect of coercive recovery of fine or

compensation from the appellant is being

created through this amended provision. It has

been observed that this provision of Section

148 is beneficial to the convict/appellant

because it reduces the liability of the

accused qua immediate deposit of the fine or

compensation if not otherwise stayed by the

Appellate Court.

[8] This Court at present does not want to enter

into the details regarding the maintainability

of the order impugned but since the appellant

has already paid 20% of the amount, the order

dated 31.3.2023 passed below Exh.10 by the

learned 3rd Additional District Judge, Jamnagar

is quashed and set aside. In the result, the

order dated 22.11.2022 passed below Exh.5

stands revived and if at all any warrant of

NEUTRAL CITATION

R/CR.RA/966/2023 ORDER DATED: 01/08/2023

undefined

execution of the sentence is issued then it

stands cancelled.

[9] Accordingly, the present application stands

disposed of.

(GITA GOPI,J) Maulik