The duty of the Court to deal with the appeal on merits and the right of the accused to defend himself.

JUDGMENT :

1. Heard learned advocate Mr.Rakesh R. Patel for the petitioner/s, learned APP Mr.K.M. Antani for the respondent-State and learned advocate Mr.Amit R. Joshi for the respondent No.2.

2. Rule, learned APP waives service of notice of rule on behalf of respondent-State and learned advocate Mr.Amit R. Joshi waives service of notice of rule for the respondent No.2.

3. Considering the facts and circumstances of the case, at the joint request of the learned advocates, this matter is taken up for final disposal forthwith.

4. By way of the present petition, the petitioner/s are seeking following reliefs :

“A. That this Hon’ble court be pleased to pass appropriate writ or order or direction to quash and set aside the order dated 7/12/2022 below Ex-19 (Annexure-H)as well as order dated 4/3/2023 below exhibit-22 in Criminal Appeal no. 24 of 2022 (Annexure- L) passed by the learned sessions court Patan, under section 482 of the Code of Criminal Procedure 1973 and thereby may be pleased to issue appropriate direction is to be issued to restore the Criminal appeal no. 25 of 2022

B. That this Hon'ble court be pleased to pass appropriate writ or order or direction, directing the learned Appellate court to restore the Criminal Appeal no. 24/2022 and hear and decide the same on merits and further be pleased to direct the appellate court to restore the order dated 09/06/2022 d below Exhibit-4 by the learned additional sessions Judge Patan

C. That the pending, final hearing of the Special Criminal Application, this Hon'ble Court may be pleased to stay the order dated 7/12/2022 below Exhibit 19 (Annexure- H)as well as order dated 4/3/2023 below exhibit -22 in Criminal Appeal no. 24 of 2022 (Annexure-L) passed by the learned sessions court, Patan and further order to restore the order dated 9/6/2022 passed below Exhibit- 4 and direct the learned Appellate court to here and decide the Criminal appeal on merit.

D. That this Honourable Court be pleased to pass such other and further orders as the nature and circumstances of the case may demand against the respondents herein.”

5. Brief facts giving rise to the present petition is as under :

5.1. The petitioner/s are convicted by the 3rd Additional Senior Civil Judge and Judicial Magistrate, Patan vide order dated 15.04.2022 in Criminal Case No.2351 of 2016. Accused-petitioner No.2 held guilty under Section 138 of the N.I. Act and whereby, petitioner No.2 convicted for simple imprisonment of one year and also to pay fine of Rs.2500/- and in default, further, he has to undergo 10 days simple imprisonment and in addition to alongwith 5% interest of the cheque amount Rs.15 lacs is to be paid by the accused towards the compensation to complainant under Section 357(3) of the Code of Criminal Procedure within a period of 60 days and in case of default, further, accused shall have to undergo 30 days simple imprisonment.

5.2. Being aggrieved and dissatisfied with aforesaid order of the conviction and sentence recorded by the learned Trial Court, the petitioner No.2 had preferred Criminal Appeal No.24 of 2022 before the learned Additional Sessions Judge, Patan along with the delay application. Accordingly, delay was condoned and appeal came to be registered and passed order below application under Section 389 of the Code of Criminal Procedure, inter alia, filed below Exh.4. On 9th June, 2022, the learned Additional Sessions Judge, Patan has been pleased to suspend the order of the sentence, subject to deposit 20% amount of the cheque i.e. Rs.3 lacs, on the bail bond of Rs.15,000/-, he was released on bail during the pendency of the appeal.

5.3. As petitioner/s was unable to make the arrangement of the 20% amount, he has submitted the application below Exh.10 on 10th June, 2022 before the learned Sessions Judge to reduce amount up to 10 % i.e. Rs.1.50 lacs. The said application came up and pursuant to the said application, the amount was reduced to Rs. 1.50 lacs vide order dated 23rd June, 2022. As petitioner/s fai