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2022 DIGILAW 617 (GUJ)

Naranbhai Bhikhabhai Patel v. State Of Gujarat

2022-04-29

B.N.KARIA

body2022
ORDER : ORDER IN CRIMINAL REVISION APPLICATION NO. 471 of 2022 1. Leave to amend. 2. By way of preferring this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, applicant has prayed to quash and set aside the judgment and order of conviction and sentence passed by learned 3rd Additional Sessions Judge, Kheda at Kapadwanj in Criminal Appeal No.29 of 2021 (Old Criminal Appeal No.44 of 2019) as well as the judgment and order passed by learned Chief Judicial Magistrate, Kapadwanj in Criminal Case No.1508 of 2014 and further be pleased to acquit the present applicant from above all charges. 3. Heard learned advocate appearing for the applicant. 4. It is submitted by learned advocate appearing for the applicant that impugned judgment and order passed by learned Judge is unjust, improper and incorrect and against good conscience. That in fact no misappropriation has been committed by the applicant and he receives the amount from customer and deposited on next date and he has not taken to the home. That no independent witness has been produced by the prosecution to prove his case and trial court had materially erred in not considering the defence witness and documentary evidence. In support of his arguments, learned advocate appearing for the applicant has relied upon the judgment reported in 2017 (1) GLR 736 . 5. Issue requires consideration. 6. Rule. Learned APP waives service of notice of rule for and on behalf of respondent-State. (B.N. KARIA, J) ORDER IN CRIMINAL MISC.APPLICATION (REGULAR BAIL) NO. 1 of 2022 1. Rule. Learned APP waives service of notice of rule for and on behalf of respondent-State. 2. By way of preferring this application, applicant has prayed for following reliefs: “(A) Admit and allow this application; “(B) Your Lordship may be pleased to suspend the judgment and order of conviction and sentence passed by learned 3rd Additional Sessions Judge, Kheda at Kapadwanj in Criminal Appeal No.29 of 2021 (Old Criminal Appeal No.44 of 2019) as well as the judgment and order passed by Chief Judicial Magistrate, Kapadwanj in Criminal Case No.1508 of 2014 and further be pleased to acquit the present appellant from above all charges.” 3. Heard learned advocate appearing for the applicant and learned APP appearing for the respondent-State. 4. Heard learned advocate appearing for the applicant and learned APP appearing for the respondent-State. 4. It is submitted by learned advocate appearing for the applicant that impugned judgment and order passed by learned Judge is unjust, improper and incorrect and against good conscience. That in fact no misappropriation has been committed by the applicant and it’s just that he receives the amount from customer and deposited on next date, not he has taken to the home. That no independent witness has been produced by the prosecution to prove his case and trial court had materially erred in not considering the defence witness and documentary evidence. Hence, it is requested by learned advocate appearing for the applicant to allow present application. 5. Learned APP appearing for the respondent-State has strongly objected the submissions made by learned advocate appearing for the applicant and requested to dismiss the present application. 6. Having heard learned advocate appearing for the applicant and learned APP appearing for the respondent-State as well as record produce before this Court, it appears that alleged amount of misappropriation was temporary in nature not a single amount was taken by the present applicant at his home. There was a delay in depositing the amount of customers by the present applicant from two to twenty two days. In fact, whatever amount as alleged by the prosecution is deposited by the present applicant in the account of the customers, after making entry in the passbook of the respective customers on the very same day. As it is undisputed fact that applicant was released on regular bail during the trial and there is nothing pointed out by the prosecution that any untoward incident was taken place or the applicant has misused the liberty granted to him. Applicant has challenged the impugned order passed by the court below by preferring criminal revision application, which is admitted by this court. It further appears that criminal revision application preferred by the present applicant would take reasonable time for final disposal. 7. In case of Atul Indravadan Vaidh Thro. His Wife Vaidh Dipikaben Atulbhai Vs. State of Gujarat and Others delivered in Criminal Misc. It further appears that criminal revision application preferred by the present applicant would take reasonable time for final disposal. 7. In case of Atul Indravadan Vaidh Thro. His Wife Vaidh Dipikaben Atulbhai Vs. State of Gujarat and Others delivered in Criminal Misc. Application (For Suspension of Sentence) No.15020 of 2017 in Criminal Appeal No.1177 of 2016, this Court has observed as under: We have applied the test of the principles enunciated by the Supreme Court in the judgments discussed hereinabove, to the facts and circumstances of the present case, while keeping all aspects of the matter including the nature of the offence and its possible social implications in mind vis a vis the liberty of the convicted applicant. The sentence imposed upon the applicant is for a limited duration, namely, imprisonment for seven years. Though the criminal appeal preferred by him has been admitted, there does not appear to be any likelihood that it would be heard and disposed of in the near future. The learned Special Public Prosecutor has submitted that the SIT has sought approval from the State Government to challenge the acquittal of the applicant under Section 302 of the IPC and also to prefer an appeal for enhancement of the sentence. Such an appeal has not been filed so far but if filed in future, it would have to be heard along with the criminal appeal preferred by the applicant. There would be other appeals of convicted persons and all appeals would be heard together, as is the usual practice. The expeditious disposal of the appeal (s), therefore, cannot be said to be a possibility that can be banked upon, with any amount of certainty. 8. Considering the sentence imposed upon the applicant is of three years simple imprisonment and Criminal Revision Application preferred by the applicant would take reasonable time for final hearing, and therefore, considering the judgment of this Court as discussed above, prayer made by the applicant requires consideration. 9. Accordingly, present application is hereby allowed. 8. Considering the sentence imposed upon the applicant is of three years simple imprisonment and Criminal Revision Application preferred by the applicant would take reasonable time for final hearing, and therefore, considering the judgment of this Court as discussed above, prayer made by the applicant requires consideration. 9. Accordingly, present application is hereby allowed. The impugned judgment and order of conviction and sentence dated 26.04.2022 passed by learned 3rd Additional Sessions Judge, Kheda at Kapadwanj in Criminal Appeal No.29 of 2021 (Old Criminal Appeal No.44 of 2019) as well as the judgment and order dated 25.04.2019 passed by learned Chief Judicial Magistrate, Kapadwanj in Criminal Case No.1508 of 2014 shall be suspended till final disposal of the captioned Criminal Revision Application No.471 of 2022. 10. During hearing and final disposal of the captioned criminal revision application, the applicant is ordered to be released on regular bail on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the learned Trial Court and on the following conditions: (a) shall maintain law and order; (b) shall not indulge in any activity leading to breach of public peace and tranquility; (c) shall not leave the State of Gujarat without prior permission of this Court. 11. Rule is made absolute. Direct service is permitted.