Allowed

Shantnu Keshav Bandiwadekar v. Kiran Kundalik Borke and Anr.

Bombay HC20 Aug 2008WP/563/2008

Case brief

AI extract

What is this about?

This writ petition challenges the dismissal of an application for condonation of delay in preferring an appeal against conviction under Section 138 NI Act. The High Court quashed the impugned order, condoned the delay, restored the criminal application, and ordered transfer of deposited funds to the Sessions Court while extending interim protection.

What did the court decide?

Impugned order dismissed appeal for delay was quashed; delay condoned; criminal misc. application allowed; appeal to be registered; interim protection extended for six weeks.

Shantnu Keshav Bandiwadekar Vs Kiran Kundalik Borke and Anr. — Cheque Dishonour | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.563 OF 2008

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 Shantnu Keshav Bandiwadekar...Petitioner

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vs.

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Kiran Kundalik Borke
 The State of Maharashtra...Respondents

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Mr.Vijay N. Bolinjkar for the petitioner
 Mr.K.K.Malpathak for Respondent No.1

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 Mr.Y.S.Shinde A.P.P. for State

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CORAM: A.S.OKA,J.
DATE : AUGUST 20,2008

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JUDGMENT:

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 1. Rule. Learned Advocate for the first Respondent waives

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 service. Learned A.P.P waives service for the second
 Respondent. Considering the narrow controversy involved, the
 petition is immediately taken up for final disposal.

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 2. The first Respondent filed a complaint against the
 petitioner alleging commission of offence under section 138 of
 the Negotiable Instruments Act,1881 (hereinafter referred to
 as the said Act of 1881). By a Judgment and Order dated 11th
 October 2007, the petitioner was convicted by the learned
 Magistrate. Apart from substantive sentence of simple
 imprisonment of two months, the petitioner was directed to pay
 compensation of Rs.70,000/- within a period of one month from
 the date of the order. In default of payment of compensation,
 he was directed to suffer simple imprisonment for four months.

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3. An appeal against the order of conviction was preferred by
 the petitioner. In the Appeal , there was a delay of 4 days
 and therefore, an application for condonation of delay was
 filed by the petitioner. In the application for condonation
 of delay, an affidavit was filed by the petitioner stating
 that though he had assured the court to deposit a sum of
 Rs.25,000/-, due to serious illness of his brother, he was
 required to proceed to his native place and therefore, he
 could not deposit the said amount. On 17th December 2007, the
 petitioner applied for time before the Sessions Court on the
 ground that he was making arrangements for depositing the
 requisite amount. On 31st January 2008 the petitioner applied
 to the Sessions Court for extension of time of one month. The
 petitioner stated in the said application that he would
 deposit a sum of Rs.5,000/-. The learned Sessions Judge
 passed an order on the said application recording that the
 Advocate for the petitioner was absent and therefore the
 application was filed. By order dated 24th January 2008,
 application for condonation of delay filed by the petitioner
 was dismissed in default. The learned IV Ad hoc Additional

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 Sessions Judge, Thane while dismissing the application
 observed that the Appeal was not preferred by the petitioner
 within the stipulated period of limitation. The learned Judge
 observed that though the order was passed on 21st January 2008
 permitting the petitioner to deposit a sum of Rs.5,000/-,

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later on it was revealed that the appeal preferred by the
 petitioner was not within limitation and there was no
 direction issued to deposit the amount.

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 . The submission of the learned counsel for the petitioner is
 that in terms of ad-interim order passed by this court on 28th
 March 2008, he has deposited a sum of Rs.25,000/- in this
 court within the time granted by this court. He submitted
 that the application for condonation of delay made by the
 petitioner ought not have been dismissed in default. He
 submitted that the said application ought to have been heard
 on merits. He submitted that in fact a case was made out for
 condonation of delay of only four days.

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 4. The learned counsel for the first Respondent submitted
 that the petitioner did not prefer the Appeal within
 stipulated period of limitation and therefore, he was under an
 obligation to pay the amount of Rs.70,000/- as directed by the
 learned Magistrate. He submitted that the decision of the
 Apex Court in case of Dilip Dahanukar Vs. Kotak Mahindra &
 Co. Ltd. (2007 Criminal Law Journal page 2417) has been
 rendered in a case where appeal against order of conviction
 was preferred within the stipulated period and therefore the
 ratio of this case will not apply to the case of the
 petitioner. He submitted that even assuming that a case is
 made out for condonation of delay, the petitioner will have to

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deposit a sum of Rs.70,000/- by way of compensation as

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 directed by the trial court.

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 5. I have carefully considered the submissions. By order
 dated 28th March 2008, this court has granted ad-interim
 relief in terms of prayer clause (b) subject to the petitioner
 depositing a sum of Rs.25,000/- in this court. Accordingly, a
 sum of Rs.25,000/- has been deposited in this court on 11th
 April 2008. Ad-interim relief granted by the said order was
 extended on 15th April 2008.

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 6. The application for condonation of delay filed by the
 petitioner has been dismissed in default. In the order dated
 24th January 2008, the learned IV Ad hoc Additional Sessions
 Judge noted that the petitioner and his advocate were absent.
 Apart from dismissing the application in default, the learned
 Additional Sessions Judge observed that the petitioner has not
 obtained an order from the trial court for extension of time
 to deposit the compensation amount.

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 7. The petitioner had preferred an appeal against the order
 of conviction. The petitioner has deposited a sum of
 Rs.25,000/- in terms of the ad-interim order passed by this
 court. As there is an order of conviction and sentence passed
 against the petitioner, the order dismissing the application
 for condonation of delay in default deserves to be set aside.

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In a normal course, this court would have directed the

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 concerned Sessions Court to decide the application for
 condonation of delay on merits. If the said course is
 adopted, it will further delay the proceedings thereby causing
 prejudice to the first respondent-complainant. Considering
 the fact that the delay is only of 4 days in preferring the
 Appeal, the same deserves to be condoned.

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 8. It will be open for the petitioner to apply before the
 Sessions Court for grant of appropriate interim
 relief/protection. After such application is made by the
 petitioner, the Sessions Court will have to consider the same
 on its own merits without being influenced by the grant of
 ad-interim relief by this court and without being influenced
 by the deposit of a sum of Rs.25,000/- in this court by the
 petitioner.

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 9. To enable the petitioner to apply for appropriate interim
 relief, ad-interim relief granted by this court deserves to be
 extended for a reasonable period. A sum of Rs.25,000/-
 deposited by the petitioner will have to be transferred to the
 concerned Sessions Court.

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 10. Hence, I pass the following order :

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i) Impugned Judgment and order dated 24th July 2008 is quashed and set aside and Criminal Misc. Application No.255 of 2007 is restored.

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ii) Criminal Misc. Application No.255 of 2007 is allowed and the delay in preferring the Appeal is condoned.

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iii) The concerned court will register the Appeal preferred by the petitioner . A sum of Rs.25,000/- deposited by the petitioner shall be transferred to the concerned Sessions Court.

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iv) Ad-interim relief granted by this court on 28th March 2008 is extended for a period of six weeks from today to enable the petitioner to apply for appropriate interim relief before the Sessions Court. It is made clear that if such application is made by the petitioner, the same will be decided by the Sessions Court on its own merits without being influenced by the grant of ad-interim relief by this court and without being influenced by the deposit of a sum of Rs.25,000/- by the petitioner in this court. If the Sessions Court issues any direction for deposit of any amount, the sum of Rs.25,000/- shall be adjusted against the said amount.

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v) All contentions which are raised by the parties on merits

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are expressly kept open.

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 vi)Rule is made absolute in above terms.

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 vii)There will be no order as to costs.

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JUDGE

Shantnu Keshav Bandiwadekar v. Kiran Kundalik Borke and Anr.

Case brief

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Shantnu Keshav Bandiwadekar v. Kiran Kundalik Borke and Anr.

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