Gujarat High Court
Rajesh Sharma S/O Late Ramji Lal ... vs State Of Gujarat on 5 July, 2023
Bench: Samir J. Dave
R/SCR.A/8250/2023 ORDER DATED: 05/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8250 of 2023
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RAJESH SHARMA S/O LATE RAMJI LAL SHARMA
Versus
STATE OF GUJARAT
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Appearance:
MR. KRUNAL K MODI(7321) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR JK SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 05/07/2023
ORAL ORDER
1. By way of present application, applicant has requested to
quash and set aside the order dated 03.06.2023 passed by
learned 8th Additional Sessions Judge, Surat in Criminal Appeal
No. 325 of 2023 directing the applicant to deposit 10% of the
compensation/fine amount within 60 days and to modify the
impugned order by waiving off/deleting the condition no.2 to
surrender the passport in the court.
2. Brief facts of the present case are as under:
2.1 That, in connection with the complaint filed under the
provisions of the NI Act, the matter being Criminal Case No.
24077 of 2016 was finally heard and put up for
pronouncement of judgment on 02.02.2023, on which date,
R/SCR.A/8250/2023 ORDER DATED: 05/07/2023
the judgment as well as the order of sentence was passed, in
the absence of the accused/applicant declining the exemption
application filed by the applicant and thereafter, as against the
said order, the applicant approached the learned Sessions
Court by way of Criminal Revision Application No. 58 of 2023
but the said application was partly rejected vide order dated
20.02.2023 by learned 5th Additional Sessions Judge, Surat
directing that the applicant shall appear in person before the
concerned trial court along with his advocate and it will be
open for him to file a fresh application under Section 389(3) of
the CRPC for provisional bail and in this connection, the
applicant was remained present before the concerned trial
court on 18.03.2023 and filed afresh application under
Section 389 of CRPC seeking suspension of sentence but the
said application of the applicant was rejected vide order dated
18.03.2023 and applicant was taken into the custody vide
order dated 18.03.2023 passed by learned Special Judge, NI
Act, Surat.
2.2 Thereafter, the applicant approached the learned Sessions
Court, Surat vide Criminal Revision Application No. 93 of
2023 against the said order dated 18.03.2023 as well as filed
bail application being Criminal Misc. Application No. 2188 of
2023 and both of these applications were decided vide
R/SCR.A/8250/2023 ORDER DATED: 05/07/2023
common order dated 18.03.2023 by learned 8th Additional
Sessions Judge, Surat and granted bail to the applicant.
2.3 Thereafter, the applicant filed an appeal against the
conviction order and sought suspension of sentence with delay
condonation application, wherein the delay condonation
application was allowed vide order dated 02.05.2023 and
thereafter the applicant made an application under Section
389 of CrPC requesting to suspend the sentence and
application seeking waiver to deposit the minimum 20% in
terms of Section 148 NI Act and vide order dated 03.06.2023,
learned first Appellate Court was pleased to suspend the
sentence of the applicant till pendnecy of such appeal with
certain conditions wherein one condition is to surrender his
passport or execute an affidavit declaring that he does not hold
a passport within 7 days from the date of this order and one
other condition is that in view of Section 148 of the Negotiable
Instruments Act, the appellant is further directed to deposit
10% of the fine/compensation imposed by the learned trial
court within 60 days from the date of this order and by way of
this application, the applicant has sought relief to quash and
set aside so far these conditions are concerned.
3. Heard learned advocate for the applicant.
4. It was submitted by learned advocate for the applicant
R/SCR.A/8250/2023 ORDER DATED: 05/07/2023
that the learned trial court has incorrectly convicted the
applicant under Section 138 of the NI Act and the applicant
was incorrectly and unjustifiably directed to pay twice the
chqeue amount of Rs. 80 lacs to the respondent no.2. That, on
perusal of the evidence on record clearly demonstrated that the
presumption under Section 139 of the Act stood rebutted and
thereafter the complainant failed to discharge the onus to
prove his case beyond reasonable doubt. That, during the
course of cross examination of CW-1 admitted the alterations
made there in and also that the same is done by different ink
and also that this new alteration does not bear any counter
signatures of the applicant herein.
5. It was further submitted by learned advocate for the
applicant that learned Sessions Judge did appreciate the merits
of the matter but did not completely waive the
fine/compensation amount and instead of 20% gave direction
to deposit 10% of the compensation/fine amount and thus,
20% of the fine/compensation was ought to have been waived
and not merely 10% of the compensation/fine amount. That
the direction of depositing the passport in court is excessive in
the given facts and circumstances, which would cause
enormous hardship to the applicant in matter of his traveling
abroad for personal and professions reasons. Ultimately, it was
R/SCR.A/8250/2023 ORDER DATED: 05/07/2023
submitted by learned advocate for the applicant to allow
present application.
6. Having heard learned advocate for the applicant and
considering the averments made in this application, it appears
that while suspending the sentence of the applicant, the
learned Sessions Judge has imposed certain conditions out of
which one is of to deposit the passport and another is to deposit
10% of the cheque amount towards the fine/compensation and
as against such order, the applicant has approached this court.
7. It appears from the conviction order passed by the
learned trial court that as per submission of the prosecution,
the cheque amount is of rupees one crore sixty lacs and after
arriving at the compromise, the cheque has been issued and
except the recording FS, the accused was not remained present.
Not only that on the date of pronouncement of judgment of
conviction, the applicant or his advocate was not remained
present.
8. During the course of arguments of learned advocate for
the applicant, this court specifically asked learned advocate for
the applicant about any willingness of the applicant to deposit
any amount but learned advocate for the applicant has stated
that the applicant is not in a capacity to deposit any amount.
R/SCR.A/8250/2023 ORDER DATED: 05/07/2023
9. Thus, it appears from the aforesaid discussion that after
conducting fulfleged trial, learned trial court has convicted the
applicant by holding him guilty and on the day of
pronouncement of judgment, the applicant was not present
before the court.
10. While considering the established provisions of law and
especially provisions of NI Act, this court is of the view that the
learned trial court has not committed any error or mistake in
passing order of directing the applicant to deposit 10%
fine/compensation amount as well as deposit the passport.
11. Thus, present application of the applicant stands rejected
at the admission stage without issuing any notice to the
otherside. The order dated 03.06.2023 passed by learned 8 th
Additional Sessions Judge, Surat in Criminal Appeal No. 325 of
2023 stands confirmed.
(SAMIR J. DAVE,J)
K. S. DARJI
