ORAL ORDER

1. Mr. Vaibhav N.Sheth, learned advocate for the applicant, submitted that the applicant has been accused no.2 in Criminal Case No.14997 of 2019, which was filed before the 10th Additional Judicial Magistrate, First Class, Ahmedabad (Rural) under section 138 of the N.I. Act. Advocate Mr. Sheth stated that the present applicant came to be convicted and sentenced for one year simple imprisonment under section 138 of the N.I. Act, and was ordered to deposit double the amount of cheque, which was calculated as Rs.2,11,662/-, within 30 days of the order as a compensation amount. In failure to deposit the money, three months further imprisonment was ordered.

2. Advocate Mr. Sheth further submitted that accused no.1, wife of the present applicant, was acquitted, while the present applicant has been sentenced for one year. Mr. Sheth submitted that the conviction order was passed in absence of accused no.2, and the order dated 25.01.2023 was to the effect of bringing the accused no.2 before the Court on issuance of non-bailable warrant.

3. Advocate Mr. Sheth submitted that an appeal was proposed to be preferred against the judgment of conviction of the Judicial Magistrate, First Class in Criminal Case No.14997 of 2019 by filing delay condonation application, which was for condoning the delay of one year 37 days. Mr. Sheth stated that delay condonation application came to be rejected on the observation of the 7th Additional District and Sessions Judge, Ahmedabad (Rural), that the present applicant was not present before the Court on the date of declaration of the judgment and since non-bailable warrant had been issued, he was required to move an application for stay by appearing before the Judicial Magistrate, First Class and making a prayer for bail till the time of filing of the appeal.

4. Mr. Sheth, learned advocate for the applicant stated that there is no allegation that the applicant was dodging the service of non- bailable warrant; the Additional Sessions Court was required to consider the merits of the case, where the prayer was made to condone the delay of one year and 37 days.

5. Referring to the provision of section 374 of the Cr.P.C., Mr. Sheth submitted that on conviction, an appeal is to be preferred before the Court of Sessions, and, thus there would not be any scope of again appearing before the Judicial Magistrate, First Class when an order had already been passed for issuance of non- bailable warrant. Mr. Sheth submitted that for a prayer to suspend the sentence, the appellate Courts are guided by the provision of section 389 of Cr.P.C., and could have ordered the execution of the sentence, but when a prayer has been made for condoning the delay, then it becomes incumbent upon the courts to decide the application on merits.

6. Advocate Mr. Sheth further submitted that delay condonation application came to be rejected on the observation that the applicant had not surrendered before the trial Court praying for bail.

7. Advocate Mr. Sheth stated that the observation in the impugned order shows that Advocate of the applicant was very much present before the Court and the hearing of the application was in progress; the Sessions Court itself could have gone by the provisions of section 389 Cr.P.C., or while rejecting the delay condonation application, ought to have ordered the execution of sentence, which Mr. Sheth submitted itself could be the criteria which comes into play only after the application praying for condoning the delay has been decided on merits.

8. Countering the arguments, Mr. Hardik Mehta, learned APP, submitted that the applicant had the knowledge of the proceedings, and was required to be present on the date of declaration of the judgment, and when non-bailable warrant has been issued, he was required to suffer the sentence and surrender before the jail authority, and thereafter could have made a prayer for releasing him on bail, which he has failed to do so, and, thus the Sessions Court rightly, obs