Mukeshbhai Vithalbhai Suthar ... vs State Of Gujarat
2023 Latest Caselaw 483 Guj

      R/CR.RA/901/2022                        ORDER DATED: 16/01/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    R/CRIMINAL REVISION APPLICATION NO. 901 of 2022
                              With
   CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM
                     RELIEF) NO. 2 of 2022
                                In
     R/CRIMINAL REVISION APPLICATION NO. 901 of 2022
========================================
          MUKESHBHAI VITHALBHAI SUTHAR (MEWADA)
                             Versus
                        STATE OF GUJARAT
========================================
Appearance:
MR TEJAS P SATTA(3149) for the Applicant(s) No. 1
MR.AMIT R JOSHI(6682) for the Respondent(s) No. 2
P B VELANI(7465) for the Respondent(s) No. 2
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
========================================
      CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
                         Date : 16/01/2023
                           ORAL ORDER

1. This petition is filed challenging an order passed below

Exhibit-4, in an application for suspension of sentence being

Criminal Appeal No. 20 of 2022 filed by the present petitioner

challenging the judgment of conviction and order of sentence

passed by the trial Court, whereby his application for suspension of

sentence came to be rejected on the ground that the petitioner -

accused had not remained present before the appellate Court on

the day of hearing of the application. Even on an undertaking filed

by the learned advocate to the effect that the petitioner - accused

will remain present before the Court, petitioner - accused did not

remain present.

R/CR.RA/901/2022 ORDER DATED: 16/01/2023

2. As such, the petitioner - accused submitted before the

appellate Court that since he was in custody in another case, he

was not able to remain present when the appeal was filed, despite

the undertaking given by the learned advocate in that case

accused shall remain present before the appellate Court was also

not complied with.

3. As such, despite the petitioner - accused was convicted and

ordered to undergo imprisonment vide judgment of conviction and

order of sentence dated 26.04.2022 and it was suspended on an

application given by the petitioner - accused, though he preferred

an appeal before the appellate Court, he did not remain present,

and therefore, hearing of the appeal and an application under

Section 389 of the Code of Criminal Procedure, 1973, prolonged.

Despite the time granted by the convicting Court, suspending

sentence and releasing him even on bail was over, he did not

remain present before the appellate Court but on 06.07.2022, he

applied vide Exhibit-102 before the Magistrate for extension of

time, which came to be rejected by the trial Court vide order dated

06.07.2022. Despite that, the petitioner - accused did not remain

present before the appellate Court, and therefore, Court was

constrained to reject the application Exhibit-4 filed by the petitioner

- accused, and therefore, this revision application is filed.

R/CR.RA/901/2022 ORDER DATED: 16/01/2023

4. However, since post conviction, the sentence imposed upon

the petitioner - accused was suspended, though he did not appear

before the appellate Court within the time, I don't find any fault

with the impugned order passed by the appellate Court. However,

Mr. Tejas Satta, learned advocate for the petitioner, submitted that

as provided under Section 148 of the Negotiable Instruments Act,

1881, the petitioner - accused shall deposit 20% of the cheque

amount before the appellate Court tomorrow i.e. on 17.01.2023.

If that amount is deposited before the appellate Court as

submitted, the impugned order dated 22.07.2022 passed by the 2 nd

Additional Sessions Judge, Patan, below Exhibit-4 in Criminal Appeal

No. 20 of 2022 is quashed and set aside and he is ordered to be

released on bail on the terms and conditions that may be imposed

by the appellate Court as appeal is pending before the said Court.

If petitioner - accused fails to deposit the amount tomorrow

as aforesaid, the appellate Court is free to take steps to see that

appropriate order is passed in that pending appeal.

In view thereof, this revision application is allowed to the

aforesaid extent. Connected Criminal Misc. Applications for

vacating interim-relief and stay, stand disposed of.

Direct service today is permitted.

(UMESH A. TRIVEDI, J.) Raj