Haresh Hasmukh Rambhiya v. Afjal Husenkhan Pathan & Ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO.295 OF 2025Haresh Hasmukh Rambhiya, Age-46 years, Occu- Agri,R/o. Shivaji Chowk, Daund,...APPLICANTTq. Daund, Dist. Pune[Ori. Accused]VERSUS1.Afjal Husenkhan Pathan, Age-50 years, Occu- Business,R/o. Mulani Galli, Near Palika Office, Kedgaon Deviche, Ahmednagar2.The State of Maharashtra...RESPONDENTS [No.1 is Ori. Complainant No.2 is a formal party]Ms Namrata S. Bobade, Advocate through VC a/w Mr. Rajat Untwal, Advocate for the applicantMr. Abhijt C. Darandale, Advocate for the respondent No.1Mr. R. K. Ingole, APP for the respondents/StateCORAM:ABHAY J. MANTRI, J.DATE:13th OCTOBER, 2025ORAL JUDGMENT :1.The applicant/original accused aggrieved by the orderdated 30-03-2024 passed by the learned Additional Sessions Judge, Ahmednagar, below Exh. 1 in Criminal Appeal No. 260/2022,whereby the appeal was dismissed for non-compliance with theundertaking (Exh. 18), has preferred this revision.1 of 8 (2)1crirevapln295.25.odt2.Heard the learned advocate for the parties at length. Perused the impugned order and record. I have also gone through thejudgments relied on by the learned advocates for both parties.3.At the outset, it appears that therespondent/complainant had filed the proceeding under Section 138of the Negotiable Instruments Act (for short, the ‘N.I. Act’) against theapplicant. After considering the evidence on record, the learnedMagistrate allowed the application and convicted the applicant forthe offence punishable under Section 138 of the N.I. Act andsentenced him to suffer simple imprisonment for six months and topay an amount of Rs.10 lakhs [Rs. Ten Lakhs Only] to thecomplainant as compensation.4.Being aggrieved by the said order, the applicant/accusedpreferred the appeal before the learned Sessions Court. The learnedSessions Court, while passing the order below Exh. 5, directed theapplicant to deposit 20% of the compensation amount in the courtwithin a period of one month. The applicant has also challenged thesaid conditional order in Criminal Writ Petition No.192/2023,wherein this court, by order dated 10-03-2023, disposed of thepetition by directing the applicant to deposit 20% of the amount ofthe compensation before the learned Sessions Court as per hisundertaking within a peirod of two weeks from the said order.2 of 8 (3)1crirevapln295.25.odt5.It further appears that the applicant failed to complywith the conditional order passed by the learned Additional Sessionsjudge and this court in Cri. Writ Petition No. 192/2023. Therefore, the learned Magistrate on 30-03-2024, dismissed the appeal for non-compliance of the undertaking (Exh. 18). Hence, this revisionapplication.6.The learned advocate for the applicant vehementlycontended that the appellate court erred in dismissing the appeal indefault for non-compliance with the conditional order passed by thelearned Additional Sessions Judge.7.To buttress her submissions, she has relied on thejudgment of the Hon’ble Apex Court in Rakesh Ranjan Shrivastava VsState of Jharkhand reported in (2024) 4 SCC 419, Dhananjay RaiAlias Guddu Vs State of Bihar reported in (2022) 14 SCC 95 andVijay D. Salvi Vs State of Maharashtra reported in 2007 SCC OnlineSC 730 and submitted that in view of the law laid down in the abovecited judgments the revision application be allowed and impugnedorder be set aside.8.Per contra, the learned advocate for therespondent/complainant at the outset argued that revision is notmaintainable. When he was asked to satisfy the same, he failed tosatisfy the same. However, he pointed out sections 382, 384 and 3853 of 8 (4)1crirevapln295.25.odtof the Code of Criminal Procedure and submitted that revision is notmaintainable in view of the same. Similarly, he has relied on thedecision in Daulat Singh V. The State of Madhya Pradesh, SpecialLeave Petition diary No. (s) 20900/2024, and submitted that theHigh Court, in exercise of its inherent power, may grant an exemptionfrom surrendering in a particular case. Therefore, he submitted thatthe revision is not maintainable.9.The second limb of his argument is that, in view of thedecision in Dharmendrakumar Vs State of Maharashtra, reported in2019 All M.R. (Cri) 2688, (para 12) and Nandkumar MunnaswamiPilley v/s State of Maharashtra, 2007(6) AIR Bom 337 (para 6) thelearned appellate court can summarily dismiss the appeal underSections 372, 382, 383, 384 & 385 in view of the law laid down inthe said case. He has pointed out paragraphs 6 and 12 of therespective judgments. 10.Having heard the learned advocate for the parties, ashort question arises in the revision, “whether the appeal against theconviction filed by the accused under sub-section 2 of Section 374 ofthe Code of Criminal Procedure can be dismissed on the ground thatthe applicant/accused failed to complied with the direction given bythe learned appellate court as well as this court?”.4 of 8 (5)1crirevapln295.25.odt11.It is pertinent to note that the learned Advocate for therespondent/original complainant failed to point out any provision fordismissal of the appeal in default for non-compliance with any order.12.I have perused the order passed by the learned appellatecourt. I would like to reproduce the optative part of the order:“The criminal appeal No. 260/2022 is dismissed for non-compliance of undertaking (Exh. 18)”.13.A bare perusal of the said order, it is evident that theappellate court has dismissed the appeal for non-compliance of theundertaking (Exh. 18), not summarily dismissed the same on merits. Undisputedly, the appeal was not dismissed after considering thematerial produced before it, on merits, but it was dismissed for non-compliance of the undertaking (Exh. 18). The Hon’ble Apex Court inVijay Salvi (supra), Rakesh Shrivastava (supra) & Dhananjay Rai(supra) has categorically held that no appeal could be dismissed fornon-compliance of the order or the order passed for deposit ofcompensation amount. But, the procedure for recovering the saidamount is given in Chapter 23 of the Cr. P. C. from section 417 to429.5 of 8 (6)1crirevapln295.25.odt14.Undisputedly, the impugned order itself indicates thatthe learned Judge without giving an opportunity to the applicant orwithout dealing with the matter on merits, dismissed the same fornon-compliance of order/undertaking and therefore, in view of themandate in the above referred judgments, the impugned judgmentcannot be sustained in the eyes of law and same is liable to be setaside in the revision. 15.Perused the judgment in Daulat Singh. However, the factsin the said case are distinct from the case at hand, as in the said case, the High Court has dismissed the application seeking an exemptionfrom surrendering the accused before the court as not maintainable. However, in the case at hand, this court has not passed any order forthe grant of exemption, nor has it ordered that the applicantsurrender himself before the appellate court. But the applicant ischallenging the dismissal of the appeal for non-compliance with theundertaking. Therefore, observations made in the said decisionhardly assist the respondent in supporting his contention.16.The learned appellate court can indisputably dismiss theappeal under Sections 372, 382, 383, 384, and 385 after consideringthe examining the material on record and the merits of the case, inview of the law laid down in Dharmendrakumar and NandkumarPilley (Supra). But not for non-compliance with the order. Therefore,6 of 8 (7)1crirevapln295.25.odtobservations made in the above judgments do not apply to the case athand.17.Apart from that, in view of the law laid down in theVijay Salvi (supra), Rakesh Shrivastava (supra) & Dhananjay Rai(supra) the appellate court is not empowered to dismiss the appealfor non-compliance of the order to deposit of 20% of thecompensation amount or failed to deposit part compensation amountby the appellant before the learned Magistrate as it does not takeaway the right of the accused to defend the prosecution andtherefore, the law laid down in the said judgments are applicable inthe case in hand.18.Thus, considering the above discussion, in my view, theorder passed by the learned Additional Sessions Judge cannot besustained in the eyes of the law. Consequently, the criminal revisionapplication is allowed. The impugned order dated 30-03-2024 passedbelow Exh. 1 in Criminal Appeal No.260/2022 is hereby quashed andset aside, and said criminal appeal No.260/2022 is restored to itsoriginal position.19.It is pertinent to note that the applicant has not compliedwith the order passed by the learned appellate court or theundertaking given as per the direction of this court. The learnedappellate court may execute the conditional order as contemplated7 of 8 (8)1crirevapln295.25.odtunder Sections 417 to 430 of the Cr. P. C.20.The learned appellate court is directed to take necessarysteps to ensure compliance with its order or secure the applicant'spresence before the court.21.Inform the learned appellate court accordingly.22.In view of the above, the criminal revision applicationstands disposed of. [ABHAY J. MANTRI, J. ]VishalK/1crirevapln295.25.odt8 of 8