In a significant decision by the Gujarat High Court, a ruling was made regarding the extension of time for deposit in a legal case. The case involved proceedings under section 138 of the Negotiable Instruments Act against the petitioner and four other accused, resulting in a judgment and order of conviction. The Court’s order required the deposit of 20% of the cheque amount as a condition for suspending the sentence, which was contested in a Special Criminal Application. Read on to understand the implications of this ruling for future cases.
Facts
- The present petitioner preferred an application for extension of time for making a deposit as per the order dated 08-01-2024.
- Along with the appeal, the petitioner also filed an application under Section 389 of the Cr.P.C. for the suspension of sentence during the appeal’s pendency.
- On 08-01-2024, the learned Sessions Court suspended the sentence on the condition of depositing 20% of the cheque amount within 60 days.
- One of the co-accused filed a Special Criminal Application seeking direction on a pro-rata basis for the deposit of 20% of the amount.
- Petitioner failed to deposit the amount as directed by the learned Sessions Court
- Respondent’s application below Exh.10 sought cancellation of the suspension order and issuance of a non-bailable warrant
- Learned Sessions Court granted the application, vacated the suspension order, and issued a non-bailable warrant
- Petitioner’s advocate stated financial distress as the reason for non-payment
- Petitioner has arranged funds and prepared a demand draft of Rs.67,66,670 for all four appeals
- Advocate requests time to deposit the demand draft and quash the impugned order
Arguments
- Learned advocate Mr. Bhavya Patel, representing the petitioner, filed an application seeking an extension of time to deposit 20% of the cheque amount as per the order of the Learned Appellate Court.
- The application was opposed by learned advocate Mr. Abhisst Thaker for the respondent, stating that sufficient opportunity was already provided and no further time should be granted.
- The proceedings under section 138 of the Negotiable Instruments Act were initiated against the petitioner and 4 other accused, resulting in a judgment and order of conviction.
- An order was passed by the Learned Appellate Court requiring the petitioner to deposit 20% of the cheque amount as a condition for suspending the sentence.
- This condition was challenged by one of the accused in Special Criminal Application No. 3158 of 2024 before the court.
Analysis
- The non-deposit of the amount as directed by the appellate court was due to circumstances beyond the control of the appellant.
- The prosecution of a private complaint for an offence under section 138 of the NI Act is different from prosecution for other IPC offences.
- The test always to be in good faith when dealing with such cases.
- Time was extended by the learned appellate court for depositing the amount, but the petitioner couldn’t do so due to financial constraints.
- The court directed the co-accused to deposit 20% of the amount on a prorata basis.
- The application is filed under section 482 of Cr.P.C. read with section 227 of the Constitution of India to challenge the decision.
Decision
- The petitioner prepared a demand draft of Rs.67,66,670/-, which is the 1/5 share of 20% amount of total 4 cheques of Rs.16,91,66,760/-.
- The court granted a further period of one week for the petitioner to deposit the demand draft before the learned appellate court.
- Upon depositing the amount, the complainant was granted liberty.
- The court made the rule absolute, allowing the application and granting further time for deposit.
- The order of the learned Sessions Court, Kalol, Gandhinagar was passed below Exh.10 in Criminal Appeal No.09 of 2024, Criminal Appeal No.12 of 2024, Criminal Appeal No.06 of 2024, and Criminal Appeal No.03 of 2024 on 03-05-2024.
Case Title: TALHA YUNUS SARESHWALA Vs. DEENA MUKESH SHETH
Case Number: R/SCR.A/6185/2024
