- 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 CRIMINAL CRIMINAL WRIT PETITION NO.563 OF 2008 WRIT PETITION NO.563 OF 2008 WRIT PETITION NO.563 OF 2008 Shantnu Keshav Bandiwadekar ...Petitioner vs. Kiran Kundalik Borke The State of Maharashtra ...Respondents Mr.Vijay N. Bolinjkar for the petitioner Mr.K.K.Malpathak for Respondent No.1 Mr.Y.S.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 20,2008 : AUGUST 20,2008 : AUGUST 20,2008 JUDGMENT: JUDGMENT: JUDGMENT: 1. Rule. Learned Advocate for the first Respondent waives 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. 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. - 2 - 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 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/-, - 3 - 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. . 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. 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 - 4 - deposit a sum of Rs.70,000/- by way of compensation as directed by the trial court. 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. 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. 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. - 5 - In a normal course, this court would have directed the 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. 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. 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. 10. Hence, I pass the following order : - 6 - i) Impugned Judgment and order dated 24th July 2008 is quashed and set aside and Criminal Misc. Application No.255 of 2007 is restored. ii) Criminal Misc. Application No.255 of 2007 is allowed and the delay in preferring the Appeal is condoned. 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. 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. v) All contentions which are raised by the parties on merits - 7 - are expressly kept open. vi) Rule is made absolute in above terms. vii) There will be no order as to costs. JUDGE JUDGE JUDGE