IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 1698 OF 2009 AND WRIT PETITION NO. 1699 OF 2009 Raosaheb Mahavir Chimanna . ...Petitioner. Vs Abhay Prabhakar Lele & Anr. ...Respondents ----- Mr. I.M. Khairdi, for the Petitioner. Mr. H.J. Dedhia, APP for the State. CORAM: A.S. OKA, J. DATE: 7TH JULY, 2009 P.C. 1. Heard the learned Counsel appearing for the Petitioner. The Petitioner who is original complainant had filed two separate complaints for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 against the first respondent. The learned Magistrate convicted the first respondent accused. Thereafter, the first respondent has preferred appeals before the Sessions Court. In exercise of power under Section 389 of the Code of Criminal Procedure, 1973, the learned Sessions Judge passed an Order on 10th February, 2009 granting ad-interim stay of : 2 : operation of sentence and directed a notice to be issued to the petitioner calling upon him to show cause as to why ex-parte stay should not be confirmed. The learned Sessions Judge by the said Order directed that the appeal shall be heard expeditiously without paper book. The learned Sessions Judge with a view to secure the presence of the 1st respondent at the time of final hearing, directed the 1st respondent to furnish a PR bond of Rs.15,000/- with solvent surety of like amount. 2. It appears that on 10th June, 2009, the Petitioner filed applications before the learned Sessions Judge at Exh.27 in Criminal Appeal no.44 of 2009( Cr.WP-1698/09) and Exh.25 in Criminal appeal No.45 of 2009 (Cr.WP-1699/09). In the said applications, it was pointed out that whenever applications were filed before the learned Sessions Judge for stay of conviction order passed under Section 138 of the Negotiable Instruments Act, 1881, the learned Judge has been granting interim relief subject to deposit of the Cheque or compensation amount. It was stated in the said application that only these two cases that the learned Sessions Judge granted blanket interim relief and directed that appeals should be heard without paper book. It was contended in the said applications filed by the Petitioner that he never applied for expeditious hearing of the appeals and for dispensing with paper book. It was contended that though the first respondent accused did not pray for expeditious hearing of the appeals, the said relief has been granted by the learned Sessions Judge in favour of the first respondent. An apprehension was expressed by the : 3 : Petitioner that as the learned Sessions Judge has made a departure only in these two cases, the petitioner may get justice. Therefore, the Petitioner prayed before the same Court that the appeal be transfered to some other Court. It appears that the learned Sessions Judge on the basis of the averment made said application issued show cause notice to the Petitioner and his Advocate calling them to show cause as to why the proceedings under the Contempt of Courts Act, 1971 should not be initiated against them. The learned Counsel for the Petitioner has stated that the learned Sessions Judge has passed an order of reference. 3. On 18th June, 2009, the Petitioner applied for adjournment in both the appeals on the ground that the Petitioner was desirous of moving this Court for transfer of appeals. By an Order dated 19th June, the learned Sessions Judge passed the following Order: “ Today only I have passed a detailed order and decided to make a reference of contempt. In that order, I have specifically contended that with a view of choose forum, there was an attempt to scandalize the Court. On that background, I am of the view that though I think the matter is to be heard by this court only, but at the same time, I would like to give sufficient time to the respondent to move Hon’ble High Court. I am of the view that I am not going to transfer the appeal and I am adjourning the said case and fixing it on 3.7.2009.” 4. In these two Petitions, the Petitioner has tendered an affidavit dated 6th July, 2009. In the said affidavit, he has stated that he is withdrawing all the allegations made by him against the learned Judge in the applications filed by him before the learned : 4 : Judge. He has tendered an unconditional apology and sought permission to withdraw adverse allegations made against the learned Sessions Judge. 5. These two Writ Petitions are filed for challenging the Order dated 19th June, 2009 passed by the learned Sessions Judge by which he has declined to transfer the appeals to the other Court. The second prayer in these Petitions is for passing an order of transfer in exercise of Section 407 of the said Code. The said prayer cannot be considered in these two Writ Petitions as the prayer has to be made by a separate application which will be placed before the appropriate Court. 6. The perusal of the Petitions and the annexures thereto reveals that the apprehension expressed by the Petitioner is based on order dated 10th February 2009 passed by the learned Sessions Judge. If the said order is read carefully, it is obvious that the same is an order granting ad-interim stay which directs that a notice be issued to the Petitioner to show cause as to why the exparte stay granted by the said order should not be confirmed. By the said order, the learned Sessions Judge dispensed with paper book and ordered that appeal shall be heard expeditiously. The Petitioner is the complainant in complaints under Section 138 of the Negotiable Instruments Act, 1881. The order of expeditions disposal of the appeal and order of dispensing with paper book is an order in favour of the Petitioner. Considering the scope of : 5 : prosecution under section 138 of the said Act of 1881, paper book is normally not required as in many cases there are only few documents placed on record and only one or two witnesses are examined. The Petitioner has been given an option to contest the applications for interim relief. The Petitioner could have contested the applications for interim relief by contending that the 1st respondent be directed to deposit a reasonable amount. What is overlooked by the Petitioner is that the order dated 10th February 2009 was an ad-interim order and the Petitioner could have always filed a reply to the applications under Section 389 of the Code of Criminal Procedure, 1973 of the said Code and contested the said applications by praying for a direction to deposit a reasonable amount in terms of decision of the Apex Court in the case of Dilip Dahanukar. Moreover, instead of applying under Section 407 of the said Code, the Petitioner went before the learned Sessions Judge and requested him not to take the matter. 7. However, it is now a matter of past and the petitioner has withdrawn the allegations made against the learned Sessions Judge and has tendered an apology. If the Petitioner desires to contest the application under Section 389 of the Code of Criminal Procedure, 1973 filed by the first respondent, he can always do so by filing a reply. If the Petitioner desires that his appeal should not be heard unless paper book is filed, he could always seek permission of the Sessions Court to file a private paper book. Nothing prevents him from applying under 407 of this Code for transfer. The learned : 6 : Counsel for the Petitioner contended that the language used by the learned Judge in the order dated 19th June 2009 is very harsh. The order appears to be harsh. However, considering what had transpired earlier, it is very difficult to find fault with a Judicial Officer for using such a harsh language. Now the apology has been tendered by the Petitioner by withdrawing allegations made against the learned Sessions Judge. Therefore, now the learned Judge will not be influenced by what has happened in the past. 8. In these circumstances mentioned above, I pass the following order: a) The statement made by the learned Counsel for the Petitioner that he wants to withdraw the allegations made against the learned Sessions Judge is accepted and the apology tendered by the Petitioner is accepted b) It will be open to the Petitioner to contest the applications made by the first respondent under Section 389 of the said Code by filing a reply. If such reply is filed within a period of four weeks from today, the learned Sessions Judge will hear the applications and shall pass appropriate orders on the applications. c) If the Petitioner does not desire to contest the said applications and wants to proceed with the appeals, it will be open for the petitioner to file private paper book within a period of six weeks from today. : 7 : d) In view of the aforesaid directions, it is obvious that now there is no substance in the apprehension of the Petitioner that the appeals will be decided in haste. As far as the application filed under Section 389 of the said Code by the first respondent is concerned, it is obvious that if the Petitioner contests the said application, it will be decided in accordance with the law and all questions of that aspect are kept open. e) It is obvious that the learned Sessions Judge will hear the applications for interim relief and/ or appeals without being influenced by what has transpired earlier as the Petitioner has withdrawn all the allegations. f) The Writ Petitions stand disposed of on above terms. JUDGE