1 APPA.1282-2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1282 OF 2010 IN CRIMINAL APPEAL NO. 220 OF 2010 PNNJ Industries Pvt. Ltd. ...Applicant. Vs. Vishal Patel & Anr. ...Respondents. WITH CRIMINAL APPLICATION NO. 1283 OF 2010 IN CRIMINAL APPEAL NO. 221 OF 2010 PNNJ Industries Pvt. Ltd. ...Applicant. Vs. Vishal Patel & Anr. ...Respondents. WITH CRIMINAL APPLICATION NO. 1284 OF 2010 IN CRIMINAL APPEAL NO. 222 OF 2010 Amit Vora ...Applicant. Vs. Vishal Patel & Anr. ...Respondents. ---- Mr. R.G. Merchant for the applicants. Mr. Subodh Desai, for the respondent No.1. Mrs. M.M. Deshmukh, APP for the State. 2 APPA.1282-2010 --- CORAM: U.D. SALVI, J. APRIL 20, 2011. P.C. Heard. Perused applications. 2 Mr. Merchant, the learned Advocate for the applicants submits that the contesting respondent no.1 owes huge amounts to the applicant under the cheques in question and it is likely that he may abscond and would not be available to suffer the consequences which may go in favour of the applicants. It is for this reason, Mr. Merchant argues that Section 390 of Cr. P.C., 1973 [for short “the Code”] needs to be invoked and warrant issued for either committing him to the prison to suffer consequences of the appeal or to bind him over for suffering the said consequences at the end of the appeal. 3 Mr. Desai, the leaned Advocate for the respondents submitted that the Section 390 of the Code can only be invoked at the time of presentation of the appeal under Section 378 of the 3 APPA.1282-2010 Code and not at sweet will of the applicants. He further pointed out from the order dated 10.3.2010 passed by this court at the time of presentation of the present appeal under Section 378 of the Code that this Court thought it fit to grant only the leave and did not invoke the said provision under Section 390 of the Code. Relying on the judgment passed by the Division Bench of this Court in the case of A.H. Satranjiwala Vs. The State of Maharashtra [74 BLR 742] he further submitted that the scheme of the Code of Criminal Procedure envisaged that once a notice of the appeal has been duly served on the accused in appeal against his acquittal all that the court is required to do is to hear the accused, if the accused appears, either in person or by his Advocate before finally disposing of the appeal; and as such it is purely in the discretion of the High Court whether to exercise the power under Section 390 of the Code power analogous to power under Section 427 of the old Code or not. 4 While dealing with the case of Satranjiwala (Supra),the Division Bench of this Court analysed the scheme governing the 4 APPA.1282-2010 appeals against the acquittals under the Code then in force, in following terms: “ It is quite clear that it is in the discretion of the High Court to exercise the power under Section 427, and an application under Section 427 is made by the State and never by the accused. This Section was meant not for the protection of the accused but to ensure that the accused against whom an appeal might have been filed might, not abscond during the pendency of the appeal. It must also be appreciated that the situation is altogether different in the courts of the original criminal trial and during the hearing of an appeal, because during the trial the Court would be entitled to examine the accused at any stage of the evidence and his presence might therefore be required, whereas, in an appeal the hearing of the appeal would, normally, be proceeded with on the basis of the record. In this connection, it would be useful to examine the scheme of the Criminal Procedure Code as far as appeals against acquittal are concerned. Section 417 (1) of the Criminal Procedure Code provides: “Subject to the provisions of sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court.” Section 422 which deals with the question of notice of appeal provides: “If the Appellate Court does not dismiss the appeal summarily it shall cause notice to be given to the appellant or his pleader, and to such officer as the State Government may appoint in this behalf, of the time and place at which, such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the grounds of appeal’ and, in case of appeals under section 411A, sub-section 5 APPA.1282-2010 (2), or section 417 the Appellate Court shall cause a like notice to be given to the accused.”. In the present case, it is admitted that a notice under S.422 of the Criminal Procedure Code was duly served on the accused. The relevant portion of S.423(I) of the code which deals with the powers of the Appellate Court in disposal of appeals provides; “(1) The Appellate court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in the case of an appeal under section 411A, sub-section (2), or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering dismiss the appeal, or may- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retired or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law:...” On a plain reading of S.423 of the Code, it is quite clear that once a notice of appeal has been duly served on the accused in an appeal against his acquittal under S.417 all that the Court is required to do is to hear the accused, if he appears either in person or by his Advocate before finally disposing of the appeal. The phrase “if he appears” in sub-S (1) of S.423 makes it quite clear that the hearing of the appeal on merits can be proceeded with even in default of the appearance of the accused, provided a notice of the hearing of the appeal has been served on him as required under S.422 of the Criminal Procedure Code.” 5 In the instant case, it is revealed that the applicant has 6 APPA.1282-2010 instituted civil suits for recovery of his dues under the said cheques. It needs to be noted that the proceedings under Section 138 of Negotiable Instruments Act are not recovery proceedings but they are designed to penalise the person issuing cheques without sufficient funds in his account. The purpose of penalising such individual is to lend credibility to cheque transaction and not for securing the recovery of his dues. The applicant has to resort to the remedy under civil law for the purposes of recovery. It can, however, be seen from the order dated 10.3.2010 passed by this court that the said order was passed in relation to the Leave Applications viz. Criminal Application Nos.5137/2009, 5138/2009 and 5139/2009 moved at the time of presentation of the present appeals. It is revealed from the perusal of the said Criminal Applications that prayer for action under Section 390 of the Code against respondent no.1-accused was made and yet, this court passed the following order: “ Leave granted. Appeals admitted. Office to register the appeals” 6 It is submitted on behalf of the applicant that there is no 7 APPA.1282-2010 whisper of rejection of the prayer to invoke the said Section 390 of Code in the order and as such a fresh prayer can be made for invoking the said provision. 7 Such things cannot be read from the order which comes into being in reference to the applications incorporating the prayer to invoke the provision under Section 390 of the Code. In fact, it means that this Court did not think it necessary to grant such prayer and invoke the provision under Section 390 of the Code. 8 As regards giving the precedence to the present appeals over other appeals falling in same category, there is no reason to segregate and make special category for the present appeals and as such these appeals will have to stand in queue along with other similarly placed appeals arising out of the orders of acquittals under Section 138 of Negotiable Instruments Act, 1881. 9 Criminal Applications are, therefore, rejected. (U. D. SALVI,J.) 8 APPA.1282-2010