Mukeshbhai Vithalbhai Suthar (Mewada) vs State Of Gujarat

Umesh A. Trivedi, J

This petition is filed challenging an order passed below Exhibit-4, in an application for suspension of sentence being Criminal Appeal No. 20 of 2022 filed by the present petitioner challenging the judgment of conviction and order of sentence passed by the trial Court, whereby his application for suspension of sentence came to be rejected on the ground that the petitioner – accused had not remained present before the appellate Court on the day of hearing of the application. Even on an undertaking filed by the learned advocate to the effect that the petitioner – accused will remain present before the Court, petitioner – accused did not remain present.

As such, the petitioner – accused submitted before the appellate Court that since he was in custody in another case, he was not able to remain present when the appeal was filed, despite the undertaking given by the learned advocate in that case accused shall remain present before the appellate Court was also not complied with.

As such, despite the petitioner – accused was convicted and ordered to undergo imprisonment vide judgment of conviction and order of sentence dated 26.04.2022 and it was suspended on an application given by the petitioner – accused, though he preferred an appeal before the appellate Court, he did not remain present, and therefore, hearing of the appeal and an application under Section 389 of the Code of Criminal Procedure, 1973, prolonged. Despite the time granted by the convicting Court, suspending sentence and releasing him even on bail was over, he did not remain present before the appellate Court but on 06.07.2022, he applied vide Exhibit-102 before the Magistrate for extension of time, which came to be rejected by the trial Court vide order dated 06.07.2022. Despite that, the petitioner – accused did not remain present before the appellate Court, and therefore, Court was constrained to reject the application Exhibit-4 filed by the petitioner – accused, and therefore, this revision application is filed.

However, since post conviction, the sentence imposed upon the petitioner – accused was suspended, though he did not appear before the appellate Court within the time, I don’t find any fault with the impugned order passed by the appellate Court. However, Mr. Tejas Satta, learned advocate for the petitioner, submitted that as provided under Section 148 of the Negotiable Instruments Act, 1881, the petitioner – accused shall deposit 20% of the cheque amount before the appellate Court tomorrow i.e. on 17.01.2023. If that amount is deposited before the appellate Court as submitted, the impugned order dated 22.07.2022 passed by the 2nd Additional Sessions Judge, Patan, below Exhibit-4 in Criminal Appeal No. 20 of 2022 is quashed and set aside and he is ordered to be released on bail on the terms and conditions that may be imposed by the appellate Court as appeal is pending before the said Court.

If petitioner – accused fails to deposit the amount tomorrow as aforesaid, the appellate Court is free to take steps to see that appropriate order is passed in that pending appeal.

In view thereof, this revision application is allowed to the aforesaid extent. Connected Criminal Misc. Applications for vacating interim-relief and stay, stand disposed of.

Direct service today is permitted.