Administrators Of Ajahara ... vs State Of Gujarat
2023 Latest Caselaw 5731 Guj

                                                                               NEUTRAL CITATION




     R/SCR.A/9993/2023                           ORDER DATED: 07/08/2023

                                                                                undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 9993 of 2023

==========================================================
       ADMINISTRATORS OF AJAHARA SERVICES PVT. LTD. THRO
                 JIGNESHBHAI CHANDUBHAI SHAH
                             Versus
                       STATE OF GUJARAT
==========================================================
Appearance:
MR PUNAM G GADHVI(3724) for the Applicant(s) No. 1,2,3,4
for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                           Date : 07/08/2023

                            ORAL ORDER

1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent no.1-State.

2. By preferring this application, applicants has requested to quash and set aside the order dated 05.07.2023 passed by learned Judicial Magistrate First Class, Limdi, Surendranagar in Criminal Case No.72 of 2020 and suspend the sentence imposed upon the applicant, so that the applicant can prefer an appeal before the learned appellate court.

3. Heard learned advocates for the respective parties.

4. It was submitted by learned advocate for the applicants that the applicants were convicted for the offence punishable under Section 138 of the NI Act vide order dated 05.07.2023 in Criminal Case No. 72 of 2020 but on the date of pronouncement of the judgment and order of the conviction, the applicants being the

NEUTRAL CITATION

R/SCR.A/9993/2023 ORDER DATED: 07/08/2023

undefined

accused persons were not present and as they did not remain present during the pronouncement of judgment and no application was filed for suspension of substantive order of the sentence under Section 389 of Code of Criminal Procedure, learned court has issued non bailable warrant and that is how the applicants have approached this court by way of present application. Learned advocate Mr. Gadhvi further submitted that the applicants are ready and willing to deposit a sum of Rs. 90,000/-, before the trial Court within a period of four weeks from today. Ultimately, it was submitted by learned advocate for the applicants to allow present application.

6. On the other side, learned APP for the respondent no.1 State has strongly objected the submissions made by learned advocate for the applicants and requested to reject present application of the applicants.

7. Having heard learned advocate for the applicants and learned APP for the respondent no.1-State, it appears that the applicants have been convicted and on the date of conviction, he was not present before the court and thereafter, non bailable warrant has been issued against him and as against that order, he has approached this court.

8. 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 22.02.2017, 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. reported in 2017 (3)

NEUTRAL CITATION

R/SCR.A/9993/2023 ORDER DATED: 07/08/2023

undefined

GLR 2353 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 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."

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

(1) The applicants shall approach the learned Trial court concerned in person with their Advocate for cancellation of non bailable warrant issued by the learned Magistrate and learned Magistrate will decide such prayer in accordance with law.

(2) It will be open for the applicants on the day and date they appears before the concerned trial court to file an application under Section 389(3) of the Cr.P.C. for provisional bail.

(3) 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.

NEUTRAL CITATION

R/SCR.A/9993/2023 ORDER DATED: 07/08/2023

undefined

(4) The applicants shall file an undertaking before the court concerned to the effect that they will cooperate in the proceedings and non-adherence of undertaking will follow the consequences.

(5) The applicants shall deposit a sum of Rs.90,000/-, before the trial Court within a period of four weeks from today.

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

(SAMIR J. DAVE,J) Radhika