Gujarat High Court
Shivam Associates Thro Suthar (Mevada) ... vs State Of Gujarat on 8 January, 2024
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R/SCR.A/3824/2023 JUDGMENT DATED: 08/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3824 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHIVAM ASSOCIATES THRO SUTHAR (MEVADA) MUKESHBHAI
VITTHALBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR RAKESH R PATEL(3239) for the Applicant(s) No. 1,2
MR.AMIT R JOSHI(6682) for the Respondent(s) No. 2
MR KM ANTANI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 08/01/2024
ORAL JUDGMENT
1. Heard learned advocate Mr.Rakesh R. Patel for the
petitioner/s, learned APP Mr.K.M. Antani for the respondent -
State and learned advocate Mr.Amit R. Joshi for the respondent
No.2.
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2. Rule, learned APP waives service of notice of rule on behalf
of respondent-State and learned advocate Mr.Amit R. Joshi
waives service of notice of rule for the respondent No.2.
3. Considering the facts and circumstances of the case, at the
joint request of the learned advocates, this matter is taken up for
final disposal forthwith.
4. By way of the present petition, the petitioner/s are seeking
following reliefs :
"A. That this Hon'ble court be pleased to pass
appropriate writ or order or direction to quash and set
aside the order dated 7/12/2022 below Ex-19
(Annexure-H)as well as order dated 4/3/2023 below
exhibit-22 in Criminal Appeal no. 24 of 2022 (Annexure-
L) passed by the learned sessions court Patan, under
section 482 of the Code of Criminal Procedure 1973
and thereby may be pleased to issue appropriate
direction is to be issued to restore the Criminal appeal
no. 25 of 2022
B . That this Hon'ble court be pleased to pass
appropriate writ or order or direction, directing the
learned Appellate court to restore the Criminal Appeal
no. 24/2022 and hear and decide the same on merits
and further be pleased to direct the appellate court to
restore the order dated 09/06/2022 d below Exhibit-4
by the learned additional sessions Judge Patan
C That the pending, final hearing of the Special Criminal
Application, this Hon'ble Court may be pleased to stay
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the order dated 7/12/2022 below Exhibit 19 (Annexure-
H)as well as order dated 4/3/2023 below exhibit -22 in
Criminal Appeal no. 24 of 2022 (Annexure-L) passed by
the learned sessions court, Patan and further order to
restore the order dated 9/6/2022 passed below Exhibit-
4 and direct the learned Appellate court to here and
decide the Criminal appeal on merit.
D. That this Honourable Court be pleased to pass
such other and further orders as the nature and
circumstances of the case may demand against the
respondents herein."
5. Brief facts giving rise to the present petition is as under :
5.1. The petitioner/s are convicted by the 3rd Additional Senior
Civil Judge and Judicial Magistrate, Patan vide order dated
15.04.2022 in Criminal Case No.2351 of 2016. Accused-petitioner
No.2 held guilty under Section 138 of the N.I. Act and whereby,
petitioner No.2 convicted for simple imprisonment of one year
and also to pay fine of Rs.2500/- and in default, further, he has to
undergo 10 days simple imprisonment and in addition to
alongwith 5% interest of the cheque amount Rs.15 lacs is to be
paid by the accused towards the compensation to complainant
under Section 357(3) of the Code of Criminal Procedure within a
period of 60 days and in case of default, further, accused shall
have to undergo 30 days simple imprisonment.
5.2. Being aggrieved and dissatisfied with aforesaid order of the
conviction and sentence recorded by the learned Trial Court, the
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petitioner No.2 had preferred Criminal Appeal No.24 of 2022
before the learned Additional Sessions Judge, Patan along with
the delay application. Accordingly, delay was condoned and
appeal came to be registered and passed order below application
under Section 389 of the Code of Criminal Procedure, inter alia,
filed below Exh.4. On 9th June, 2022, the learned Additional
Sessions Judge, Patan has been pleased to suspend the order of
the sentence, subject to deposit 20% amount of the cheque i.e.
Rs.3 lacs, on the bail bond of Rs.15,000/-, he was released on bail
during the pendency of the appeal.
5.3. As petitioner/s was unable to make the arrangement of the
20% amount, he has submitted the application below Exh.10 on
10th June, 2022 before the learned Sessions Judge to reduce
amount up to 10 % i.e. Rs.1.50 lacs. The said application came up
and pursuant to the said application, the amount was reduced to
Rs. 1.50 lacs vide order dated 23rd June, 2022. As petitioner/s
failed to comply with the said order, the complainant has filed
the application through his advocate as recently accused was
released from jail. Hence, he was unable to manage the amount.
Hence, through his advocate, he filed exemption application and
requested to give time to deposit the amount. Then on 16 th July,
2022, original complainant - respondent No.2 has filed an
application below Exh.17 and requested to learned Sessions
Judge to cancel the suspension of sentence order, passed, under
Section 389 of Cr.P.C., and below the said application, the learned
Sessions Judge has been pleased to pass an order and has been
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pleased to partly allowed the application and recalled the order
passed under Section 389 of Cr.P.C. below Exh.4 and canceled the
bail bond of the accused persons during the pendency of the
Criminal Appeal on 22nd July, 2022. Then, once again original
complainant herein respondent No.2 has filed the application
below Exh.19 and requested to dismiss the appeal as accused
remained absconder. On 17th September 2022, considering the
application then taken into consideration the order passed by the
Co-ordinate Bench of this Court in case of Mahendra Bhogilal
Tadvi vs. State of Gujarat reported in 2008(3)G.L.H. 622, the
application came to be allowed and appeal preferred by the
accused came to be dismissed for default on 7th December, 2022.
5.4. Thereafter, the accused appeared before the learned
Sessions Judge, on 10th February, 2023 and applied to deposit
remaining 10% amount and requested to restore the present
appeal, but the said application came to be dismissed. Hence,
present petition is filed by and sought the relief that to quash
and set aside the order passed by the learned Additional Sessions
Judge in Criminal Appeal and requested to pass appropriate
order to restore the appeal and directed the learned Appellate
Court to restore the order dated 9th June, 2022 passed by the
learned Sessions Judge under Section 389 of the Cr.P.C.
6. In aforesaid background, having heard learned advocates
for the respective parties. It is needless to say that accused has
filed the present application for the limited prayer to restore the
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Criminal Appeal and the order passed under Section 389 of the
Cr.P.C. for suspension of the conviction passed by the learned
Appellate Court as appeal is filed due to non-compliance of the
order passed under Section 389 of Cr.P.C. Subsequently, due to
failure in absence of the accused, the order passed below Exh.1
for dismiss for default.
7. Going through the aforesaid fact, prima facie, it appears
that the appeal is disposed of without going into the merits and
in absence of the accused, no opportunity being given and
accused being heard and remained absconder and appeal is not
decided on merits. It is also worth to mention that order of
dismissal leads to on the count of the failure or non-compliance
of the order passed below Exh.4 under Section 389 of Cr.P.C. It is
needless to say that to deposit 20% amount is not mandatory as
per the law laid down in case of Jamboo Bhandari vs. Madhya
Pradesh State Industrial Development Corporation Limited
and Ors. reported in (2023) 10 SCC 446, wherein the Hon'ble
Apex Court has been pleased to held that to deposit minimum
20% amount is absolute rule which concept is erroneous. The
Hon'ble Apex Court has observed as under :
"6. What is held by this Court is that a purposive
interpretation should be made of Section 148 NI Act.
Hence, normally, the appellate court will be justified in
imposing the condition of deposit as provided in Section
148. However, in a case where the appellate court is
satisfied that the condition of deposit of 20% will be
unjust or imposing such a condition will amount to
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deprivation of the right of appeal of the appellant,
exception can be made for the reasons specifically
recorded.
7. Therefore, when the appellate court considers the
prayer under Section 389 CrPC of an accused who has
been convicted for offence under Section 138 NI Act, it
is always open for the appellate court to consider
whether it is an exceptional case which warrants grant
of suspension of sentence without imposing the
condition of deposit of 20% of the fine/compensation
amount. As stated earlier, if the appellate court comes
to the conclusion that it is an exceptional case, the
reasons for coming to the said conclusion must be
recorded.
8. The submission of the learned counsel appearing for
the original complainant is that neither before the
Sessions Court nor before the High Court, there was a
plea made by the appellants that an exception may be
made in these cases and the requirement of deposit or
minimum 20% of the amount be dispensed with. He
submits that if such a prayer was not made by the
appellants, there were no reasons for the courts to
consider the said plea.
9. We disagree with the above submission. When an
accused applies under Section 389 CrPC for suspension
of sentence, he normally applies for grant of relief of
suspension of sentence without any condition.
Therefore, when a blanket order is sought by the
appellants, the court has to consider whether the case
falls in exception or not.
10. In these cases, both the Sessions Courts and the
High Court have proceeded on the erroneous premise
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that deposit of minimum 20% amount is an absolute
rule which does not accommodate any exception.
11. The learned counsel appearing for the appellants,
at this stage, states that the appellants have deposited
20% of the compensation amount. However, this is the
matter to be examined by the High Court High Court.
12. In these circumstances, we set aside the
impugned orders of the High court and restore the
revision petitions filed by the appellants before the
High Court. We direct the parties to appear before the
roster Bench of the High Court on 9-10-2023 in the
morning to enable the High Court to fix a date for
hearing of the revision petitions. As the contesting
parties are before the Court, it will not be necessary for
the High Court to issue a notice of the date fixed for
hearing. The High Court, after hearing the parties, will
consider whether 20% of the amount is already
deposited or not. If the Court comes to the conclusion
that 20% of the amount is not deposited, the Court will
re- examine the revision petitions in the light of what
we have observed in this judgment. Till the disposal of
the restored revision petitions, the interim order passed
by this Court ordering suspension of sentence will
continue to operate."
8. Considering the fact that learned Sessions Judge has also
relied upon the decisions in case of Mahendra Bhogilal (supra)
but, It would be apposite to refer the decision of the full bench in
case of Niraj Devnarayan Shukla & Ors. State of Gujarat
reported in 2009 (1) 91 GLR, held aforesaid pronouncement 'per
incurriam', and further in the reference answered how to dealt
with the conviction appeal, if apparent, if he is absconding and
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what is the duty of the Court. The Court is duty bound to dealt
with appeal on merits.
9. Even keeping in mind law laid down by the Hon'ble Apex
Court in case of Mohd. Sukur Ali vs. State of Assam reported in
(2011) 4 SCC 729 and in case of K.S. Panduranga vs. State of
Karnataka reported in (2013) 3 SCC 721, the present case
deserves consideration. Even there is no bar, if appeal is
dismissed, on the ground of non-availability of the accused
convict, if he/they surrendered or he/they is/are arrested,
he/they may file application for restoration of the appeal and
hearing of the same on merits and there is no bar to exercise
inherent powers provided under Section 482 of Cr.P.C., which
would entitle it to make such orders as may be necessary to
secure the end of justice.
10. Considering the aforesaid fact, it appears that the remedy
for failure of any order or to pay any amount as directed by the
Court. The method and the modality of the recovery of the said
amount is clearly de-alienated by the legislature. If legislature or
the statute prescribed the method or the modality for exercise of
the powers by the necessary implication, the other method of the
performance are not acceptable. Herein, due to non-performance
of the said amount, the complainant has filed the application for
dismiss for default and learned Magistrate has been to pass an
order of dismiss for default of the complaint. Even-after,
dismissal of the complaint, learned Magistrate has also accepted
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the 10% amount from the accused. Thus, prima facie, it appears
that substantial compliance being made by the accused persons
and as offence is bailable and compoundable one, this Court is of
the considered view that as substantial compliance is that, the
opportunity of hearing is required to be given to the accused as
he is convicted and an appeal is a statutory right of the accused
and the accused has right to defend himself and for the limited
purpose, with a view to give an opportunity to defend himself, as
the appeal is not decided on merits and on technical ground
"dismissed for default" It is disposed of. Hence, this Court is of
the considered view that with a view to do substantial justice
between the parties, the order passed by the learned Sessions
Judge for dismissed for default is required to be quashed and set
aside and matter is required to be restored to its original file and
opportunity of hearing to the accused is required to be given to
defend himself.
11. In view of above, the present application deserves
consideration and hence, the present petition is allowed. The
impugned order passed dated 07.12.2022 below Exh.19 as well as
order dated 04.03.2023 below Exh.22 in Criminal Appeal No.24 of
2022 by the learned Sessions Judge are hereby quashed and set
aside. Criminal Appeal No.24 of 2022 is restored to its original
file.
12. If the petitioner/s is/are in jail, the jail authority concerned
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(sub jail Patan) is directed to release the petitioner/s forthwith, if
his/their presence is no longer required in connection with any
other case, subject to original condition imposed by the learned
Sessions Judge while passing order below Exh.4 dated 09 th June,
2022 in Criminal Appeal as original terms and conditions.
13. The accused shall have to remain present without fail
before the learned Sessions Judge and co-operate in expeditious
disposal of the appeal.
14. Concerned learned Sessions Judge is directed to dispose of
the matter preferably within a period of two months from the
date of receipt of the writ of the order of this Court. If
petitioner/s accused is failed to remain present before the
learned Sessions Judge and co-operate in early and expeditious
hearing of the appeal. Then It is open for the learned Sessions
Judge to presume that accused are not interested to defend
themselves. Learned Sessions Judge shall have liberty to pass
appropriate order in absence of the accused, they treated them
as heard and pass an order on merit of appeal ground urged in
Appeal memo. Accused shall have to file also an undertaking in
this regard before the learned Sessions Judge.
Rule is made absolute to the aforesaid extent.
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This order shall be communicated to the concerned jail
authority.
Direct service is permitted.
Sd/-
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
