Sns 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3332 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 Shri Kishanlal Maganlal Mistry Age 39 years, Indian Inhabitant, Proprietor of M/s. K.M.Consultancy & Financial Services, carrying on Business at Mahalaxmi Building, 1st Floor, 37, Maruti Lane (Next to Handloom House), Fort, Mumbai 400 001. ..Applicant. v/s. 1 M/s New Atul Engineering Works Pvt.Ltd. A private limited company having its office at Gogate Wadi, Aarey Road, Goregaon (East), Mumbai 400 063 2 Shri Ashok P. Shah Director of M/s New Atul Engineering Works Pvt.Ltd. A private limited company having its office at Gogate Wadi, Aarey Road, Goregaon (East), Mumbai 400 063 3 Shri Navalchand A. Mehta Director of M/s New Atul Engineering Works Pvt.Ltd. A private limited company having its office at Gogate Wadi, Aarey Road, Goregaon (East), Mumbai 400 063 4 The State ..Respondents. Mr. Raju Yamgar, adv. for the Applicants. Mr. V.P.Vaze, adv. for the respondent nos.1 to 3. Smt. G.P.Mulekar, APP for the R.No.4. CORAM : J.H.BHATIA, J. DATE : 14th September, 2011 Sns 2 ORAL JUDGMENT: 1 Heard. Leave to prefer appeal granted. Appeal be registered. 2 The appeal is taken up immediately for final hearing with consent of the learned counsel for the parties. 3 The appellant is the original complainant and on the complaint filed by him, accused/respondent nos.1 to 3 were convicted for the offences punishable under Section 138 of the Negotiable Instruments Act and the accused nos.2 and 3 were sentenced to undergo S.I. till rising of the Court and also to pay compensation of Rs.6 lac. In default to pay compensation, the accused were to undergo S.I. for four months. Against that order of conviction and sentence the accused initially preferred revision application no.750/2002 before the Session Court. Later on, the accused made a request to the Sessions Court to convert that revision application into an appeal against the conviction and sentence. That request was turned down by the Sessions Court holding that the appeal was not maintenable. That order was challenged by the accused before this Court in Criminal Application No.3452/2003 . By the order dated 18th July, 2005, this Court quashed and set aside the order passed by the Sessions Court and allowed the accused/applicants to convert their revision application into appeal at their own risk. This Court had not adjudicated upon the question Sns 3 whether the appeal against the impugned order of conviction and sentence is maintenable in law and directed that the said question will be decided as and when appeal is heard by the Sessions Court. 4 The sessions Court heard that appeal and allowed the same by the judgment and order dated 22nd April, 2010 without deciding as to whether the appeal is maintenable or not. Objection to the maintenability of the appeal was not decided. Therefore, the learned counsel for the appellant/complainant contended that without deciding the question of maintainability of the appeal, the Sessions Court could not proceed to hear the appeal on merits and allow it. According to him, directions given by this Court to decide the question about the maintainability of the appeal has not been complied by the Sessions Court . After some discussion, the learned counsel for the respondents/accused also concedes that this question has not been addressed to and decided by the Sessions Court while deciding the appeal. 5 Therefore, with consent of the learned counsel for the parties, the appeal is allowed. The impugned judgment and order dated 22nd April, 2010 in Appeal No.500 of 2005 passed by the learned Addl. Sesions Judge is hereby set aside with direction to the Sessions court to first decide the question as to whether the appeal against the order of conviction and sentence passed by the Metropolitan Magistrate is maintainable or not Sns 4 under the law. If the Sessions Court finds that the appeal is tenable, it will treat the appeal to have been decided by the judgment and order dated 22nd April, 2010, without hearing the appeal again on merits. However, if the Sessions Court finds that the appeal is not maintainable under law, it will pass appropriate order, in view of the permission granted by this Court to convert revision application into the appeal at the risk of the accused/appellant therein. (J.H.BHATIA, J.)