Gujarat High Court
Harshbhai Rameshbhai Thakkar vs State Of Gujarat on 2 September, 2023
Bench: Samir J. Dave
NEUTRAL CITATION
R/SCR.A/11341/2023 ORDER DATED: 02/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 11341 of 2023
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HARSHBHAI RAMESHBHAI THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR BHARGAV V PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 02/09/2023
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, applicant has requested to quash
and set aside the order dated 12.10.2021 passed by learned11th
Additional Chief Judicial Magistrate in Criminal Case No.4815 of
2019, 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 applicant that the
applicant was convicted for the offence punishable under Section
138 of the NI Act vide order dated 12.10.2021 in Criminal Case
No.4815 of 2019 but on the date of pronouncement of the judgment
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and order of the conviction, the applicant being the accused person
was not present and as he 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
CRPC, learned court has issued non bailable warrant that is how the
applicant has approached this court by way of present application.
5. It was submitted by learned advocate for the applicant that
applicant is ready and willing to deposit Rs. 22,427/- (Twenty Two
Thousand Four Hundred Twenty Seven only) before the concerned
trial court within a period of 2 weeks from today and ultimately, it
was submitted by learned advocate for the applicant 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 applicant and requested to reject present application of the
applicant.
7. Having heard learned advocate for the applicant and learned
APP for the respondent no.1-State, it appears that the applicant has
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.
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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 22.2.2017, 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. [Criminal Misc. Application No.19862 of 2015,
decided on 14.11.2016] 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) As per statement made by the learned advocate for
the applicant, applicant shall deposit Rs. 22,427/-
(Twenty Two Thousand Four Hundred Twenty Seven
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R/SCR.A/11341/2023 ORDER DATED: 02/09/2023
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only) before the concerned trial court within a period of
two weeks from today and the applicant shall approach
the learned Trial Court concerned in person with his
Advocate for cancellation of non bailable warrant issued
by the learned Magistrate and learned Magistrate will
decide such request in accordance with law.
(2) It will be open for him on the day and date he
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.
(4) The applicant shall file an undertaking before the
court concerned to the effect that he will cooperate in
the proceedings and non-adherence of undertaking will
follow the consequences.
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)
RINKU MALI
