- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.70 OF 2009, CRIMINAL WRIT PETITION NO.70 OF 2009, CRIMINAL WRIT PETITION NO.70 OF 2009, CRIMINAL WRIT PETITION CRIMINAL WRIT PETITION CRIMINAL WRIT PETITION NO.71 OF 2009, NO.71 OF 2009, NO.71 OF 2009, CRIMINAL WRIT PETITION NO.72 OF 2009 CRIMINAL WRIT PETITION NO.72 OF 2009 CRIMINAL WRIT PETITION NO.72 OF 2009 Dinesh Sadu Shetty ...Petitioner (in all the petitions) vs. Manohar K.Naidu & Anr. ...Respondents (in all the petitions) Mr.P.C.Kansara i/b M/s.Kansara and Thanekar for the petitioner Mr.H.J.Dedhia A.P.P. for State Ms Sonal Parab i/b M/s.Rajiv Savant & Associates for the respondents CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 23,2009 : APRIL 23,2009 : APRIL 23,2009 P.C.: P.C.: P.C.: 1. Heard the learned counsel for the petitioner and the learned counsel for the first respondent. The facts of these petitions ar more or less similar. Hence, for the sake of convenience, I am referring to the facts of the Writ Petition no.70 of 2009. 2. The petitioner has been arraigned as an accused in a complaint filed by the first respondent alleging commission of offence under section 138 of the Negotiable Instruments Act,1881. The learned Magistrate convicted the petitioner. The petitioner preferred an appeal which has been admitted by the Sessions Court. The substantive sentence was suspended by the learned Sessions Judge subject to the petitioner - 2 - depositing certain amount. By the impugned order, the learned Sessions Judge is permitted the first respondent to withdraw the amounts deposited by the petitioner subject to furnishing undertaking. 3. After having heard the learned counsel for the parties I find that pending substantive appeals against order of conviction, the learned Sessions Judge could not have allowed the first respondent-complainant to withdraw the amount deposited by the petitioner. The learned Judge has allowed the withdrawal subject to filing an undertaking. In case, the petitioner succeeds in the appeal, recovery of the said amount will become very difficult. At highest, the withdrawal could have been permitted only subject to furnishing bank guarantee of a nationalised bank. 4. Hence, I pass the following order : i) The impugned orders are modified. It is directed that the first respondent will be entitled to withdraw the amounts deposited by the petitioner only if the first respondent furnishes bank guarantee for the said amounts of any nationalised bank. Unless the bank guarantee is furnished the withdrawal of the amount will not be allowed. - 3 - ii) If the original complainant fails to withdraw the amounts within a period of 12 weeks from today, the same shall be invested in fixed deposit in any nationalised bank. iii) Hearing of the appeals are expedited. iv) Petitions are accordingly disposed of. JUDGE JUDGE JUDGE