Gujarat High Court
Patel Saileshkumar Mafatlal vs State Of Gujarat on 16 March, 2020
Author: B.N. Karia
Bench: B.N. Karia
R/CR.RA/278/2020 ORDER
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 278 of 2020
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PATEL SAILESHKUMAR MAFATLAL
Versus
STATE OF GUJARAT
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Appearance:
MR EKANT G AHUJA(5323) for the Applicant(s) No. 1
MR MAHENDRA U VORA(3034) for the Respondent(s) No. 2
MS. M.H. BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 16/03/2020
ORAL ORDER
The applicant has challenged the impugned order dated 03.02.2020 passed by learned 2nd Additional Sessions Judge, Mehsana in Criminal Appeal No.216 of 2019.
Heard learned advocate for the applicant, learned advocate for the respondent No.2 and learned APP for the respondent-State.
It is submitted by learned advocate for the applicant that impugned judgment and order passed by the Trial Court is contrary to law and evidence available on record. That learned Sessions Judge ought not to have dismissed the appeal for non- prosecution in view of the fact that record and proceedings were not called and same was not before the Court. That without called upon the R & P the appeal has been disposed of which is contrary to law. That, learned Sessions Judge ought not to have dismissed the appeal in view of the fact that non bailable warrant was issued against the applicant and which was executed upon the applicant and at least delivery the Page 1 of 4 Downloaded on : Wed Mar 18 21:35:05 IST 2020 R/CR.RA/278/2020 ORDER service of the same.
Learned APP for the respondent-State has opposed the prayer made by the applicant submitting that applicant himself was not vigilant in proceedings in his appeal preferred by him. No illegality is committed by court below in dismissing the appeal.
Leaned counsel appearing for the respondent No.2 has submitted that as per the order dated 16.10.2019 in Criminal Appeal No.216 of 2019, applicant was ordered to deposit Rs.20% of the fine or compensation amount awarded in the order within 60 days from the date of the order. That, applicant has failed to deposit an amount as per the order and therefore, learned Sessions Court has rightly dismissed the appeal. Hence request made by the present applicant cannot be accepted by this Court.
Having considered the facts of the case and submissions made by learned advocates for the respective parties as well as learned APP for the respondent-State, following order was passed by learned 2nd Additional Sessions Judge, Mahesana in Criminal Appeal No.216 of 2019 below Exh.5 on 16.10.2019:
"1. The order passed by the learned 2nd (Ad-hoc) Additional Judicial Magistrate First Class, Vijapur in Criminal Case No.277 of 2017 of dated : 08/07/2019 is hereby suspended till the final disposal of the appeal subject to deposition of 20 % of cheque amount within 60 days from the date of this order.
. The appellant/accused is hereby enlarged on bail on Page 2 of 4 Downloaded on : Wed Mar 18 21:35:05 IST 2020 R/CR.RA/278/2020 ORDER
furnishing personal bond of Rs.15,000/- with one solvent surely of like amount.
. the accused shall have to follow and to comply following terms and conditions:
1. The appellant/accused shall not change his place of residence without prior permission of the Court.
2. The Appellant/accused is hereby directed to co-operate for the expeditious disposal of the appeal.
3. The appellant/accused is hereby directed to remain personally present before the court regularly.
4. The appellant/accused is hereby directed not to leave the territory of India without prior permission of the Court.
5. The appellant/accused shall not take any un-due advantage of his personal liberty which has been upheld by the Court.
. Notice be issued to respondent/original complainant on payment of P.F. Returnable on 20.11.2019"
In first para of the order, it was rightly observed to deposit 20 % of fine or compensation amount to be deposited by the present applicant. It appears that, on account of bonafide mistake in the order, sentence was suspended till final disposal of the appeal subject to deposition of 20% of the cheque amount within 60 days from the date of the order. Under Section 148 (1) of the N.I. Act, the Appellate Court may pass an order of deposition not less than 20% of the fine/compensation awarded by the learned Trial Court. Indisputedly, as per the order Page 3 of 4 Downloaded on : Wed Mar 18 21:35:05 IST 2020 R/CR.RA/278/2020 ORDER passed by the learned Trial Court, applicant was ordered to pay amount of Rs.1,00,000/- by way of fine. Applicant has deposited Rs.20,000/- before the Trial Court. Dismissing the appeal without hearing on merits by learned 2nd Additional Sessions Judge, Mehsana is not legal and proper. In a case reported in 1994 (4) SCC 664 it is held that no criminal appeal can be dismissed on the ground of default in appearance. The Court has to go through the record of the case even in the absence of the appellants or their counsel and decide the matter on merits. In the instant case learned Additional Sessions Judge has straightway dismissed the appeal preferred by the present applicant in absence of his counsel.
Hence, the impugned judgment and order dated 03.02.2020 passed by learned 2nd Additional Sessions Judge, Mehsana in Criminal Appeal No.216 of 2019 is hereby quashed ans set aside. The learned Additional Sessions Judge, Mehsana shall decide the Criminal Appeal No.216 of 2019 on its own merits after giving opportunity to either side for hearing. Either party shall co-operate before the concerned court. Notice is discharged.
(B.N. KARIA, J) SUYASH Page 4 of 4 Downloaded on : Wed Mar 18 21:35:05 IST 2020