Gujarat High Court
Ashishkumar Ratilal Soni vs State Of Gujarat on 17 April, 2025
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R/SCR.A/9368/2024 ORDER DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 9368 of
2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 9369 of 2024
With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF)
NO. 1 of 2024
In R/SPECIAL CRIMINAL APPLICATION NO. 9369 of 2024
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ASHISHKUMAR RATILAL SONI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. BHAUMIK P PATEL(7510) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 17/04/2025
COMMON ORAL ORDER
1. As the issue involved in both the petitions is
identical, they are heard together and disposed of by
this common order.
2. By way of preferring Special Criminal
Application No.6368 of 2024, the petitioner has
sought for the following main relief/s:
"A. Your Lordships may be pleased to issue
appropriate writ, order and/or direction
directing the Judicial Magistrate First Class,
Harij to accept the fresh application filed by
the petitioner under Section 430(3) of
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Bhartiya Nagarik Suraksha Sanhita, 2023 in
Criminal Case No.414 of 2013 and enable the
petitioner to file appeal against the impugned
judgment and order;
B. Your Lordships may be pleased to issue
appropriate writ, order and/or direction
directing the first Appellate Court to accept
a fresh appeal file by the petitioner and
heard on merit;
3. Heard learned advocate Mr. Bhaumik Patel for the
petitioner and learned APP Mr. Chintan Dave for
respondent No.1 - State.
4. Learned advocate for the petitioner submits that
petitioner herein is the original accused in the
proceedings instituted by respondent No.2 - original
complainant under Section 138 of the Negotiable
Instruments Act, wherein, the Court concerned has
taken cognizance of the facts of the complaint and
passed an order of issuance of process against the
petitioner - accused, which was duly served to him.
Thereafter, trial was proceeded with and ultimately
at the end of the day, after considering and
appreciating the materials placed before the learned
Court concerned, the learned Court jumped to the
conclusion that complainant has proved the charges
levelled against the petitioner in the complaint by
leading cogent, convincing and reliable evidence and
ultimately passed the order of conviction and
sentence on 16.06.2021. However, on the same day,
learned advocate, who was representing the
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petitioner, has preferred an application, inter alia,
stating that the learned Court has passed the order
in absence of petitioner and therefore petitioner
wants to challenge the said order before the learned
Appellate Court and hence the order be suspended for
a period of 30 days so as to enable the petitioner to
avail his statutory right to prefer an appeal. The
said application was heard and ultimately dismissed
by the Court concerned. Being aggrieved by and
dissatisfied with the said order, petitioner herein
has preferred a revision application before the
learned Revisional Court, which also came to be
rejected. He further submits that petitioner has also
preferred an appeal before the learned Appellate
Court challenging the order of conviction and
sentence passed by the learned Trial Court. As there
was delay of 80 days in preferring the appeal, a
separate application was preferred seeking
condonation of delay. However, the said application
has also been dismissed by the learned Appellate
Court. Therefore, both the orders were challenged by
way of preferring Special Criminal Application before
this Court. The said petition was not entertained by
this Court and therefore the same was withdrawn with
a liberty to file an appeal before the competent
Court. Thereafter, the petitioner herein has
preferred an appeal before the learned Appellate
Court. As there was delay in preferring the appeal, a
separate application seeking condonation of delay was
also preferred along with the memo of the appeal.
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However, as the petitioner has failed to show
sufficient cause of delay in preferring the appeal,
the said application seeking condonation of delay has
not been entertained by the learned Appellate Court
and the same was dismissed. The petitioner,
therefore, preferred present petitions.
5. Learned advocate for the petitioner submits that
it is the settled proposition of law that to prefer
an appeal against the order of conviction is a
statutory right of the accused. Moreover, the
petitioner herein had already deposited 100% amount
of the cheque in question before the Court concerned
and if the application preferred by the petitioner
would not be accepted, in that event, his statutory
right to prefer an appeal before the competent
Appellate Court would be jeopardized. Therefore,
considering the aforesaid factual aspects, petitions
may be allowed on humanitarian ground.
6. Learned APP has opposed present petitions with
vehemence and submitted that from the facts of the
present case, it is found out that the petitioner has
taken entire proceedings in a very casual manner and
he was not vigilant enough and therefore the
contention raised by learned advocate for the
petitioner that present petition may be entertained
on humanitarian ground cannot be considered by the
Court considering the conduct of the petitioner. He
further submits that without challenging the order
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passed by the learned Appellate Court, whereby, the
application preferred by the petitioner seeking
condonation of delay in preferring appeal is not
entertained by the learned Appellate Court, the
question of accepting the application under Section
430(3) of the BNSS Act does not survive. He,
therefore, submits that petitions may be dismissed.
7. Having heard learned advocates appearing for the
parties and having gone through the materials placed
on record, it is found out that respondent No.2 -
original complainant has instituted one complaint
under Section 138 of the Negotiable Instruments Act
against the petitioner herein. After appreciating and
scrutinizing the materials available before it,
learned Trial Court passed an order of conviction
against the petitioner. At that relevant point of
time, as the petitioner was not available, learned
advocate for the petitioner has made an application
seeking stay of the said order. However, the said
application has not been entertained by the learned
Trial Court. The petitioner, therefore, preferred
revision application before the learned Revisional
Court, which came to be dismissed by the learned
Revisional Court. Thereafter, petitioner has
preferred an appeal. As there was delay in preferring
the appeal, petitioner has also preferred an
application for condonation of delay. The said
application has been dismissed by the learned
Appellate Court. Therefore, petitioner has preferred
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petition before this Court assailing both the said
orders. The said petition has been disposed of by
this Court by permitting the petitioner to prefer an
appeal before the learned Appellate Court without
quashing the order, whereby, the application
preferred by the petitioner seeking condonation of
delay in preferring the appeal has been dismissed.
Thus, in the opinion of this Court, when the said
order has not been quashed by the Coordinate Bench of
this Court, the order of conviction passed by the
learned Trial Court gets confirmed automatically.
8. It is also pertinent to note that as per the
permission granted by the Coordinate Bench of this
Court, the petitioner herein has preferred appeal
before the learned Appellate Court. However, in the
said appeal also, there was delay and therefore
separate application for condonation of delay was
also preferred by the petitioner. However, the said
application has been dismissed by the learned
Appellate Court. Instead of challenging the said
order, petitioner has preferred present petition,
whereby, he prayed that direction may be issued to
the learned Trial Court to accept the application
under Section 430(3) of the BNSS. Thus, in the
opinion of this Court, without challenging the order
passed by the learned Appellate Court, whereby, the
application preferred by the petitioner seeking
condonation of delay in preferring appeal is not
entertained by the learned Appellate Court, the
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question of accepting the application under Section
430(3) of the BNSS Act does not survive. Moreover, it
is also found out from the record that the petitioner
has taken entire criminal proceedings in a very
casual manner.
9. In view of the aforesaid discussion, the
petitions stand dismissed.
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
