Advocates:
['BHOSALE SACHIN V', 'COPY SERVED ON P P', '', 'R/ served']

1

crwp 470.22.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

28 CRIMINAL WRIT PETITION NO.470 OF 2022

SWAPNIL AVINASH DESHMUKH

VERSUS

THE STATE OF MAHARASHTRA AND ANOTHER

...

Advocate for Petitioner : Mr. D.A. Naik h/f Bhosale S V

APP for Respondent : Mr. P G Borade

...

CORAM : SHRIKANT D. KULKARNI, J.

Dated: September 12, 2022

...

PER COURT :-

1.

Mr. Naik h/f Mr. Bhosale, learned counsel for the

petitioner submits that as per the Court’s order dated

5.8.2022, private notice has been served upon the

respondent no.2. He has fled service affdavit to that

effect and complied with the order. On behalf of the

petitioner, service affdavit seems to have been fled

dated 6.9.2022 alongwith the track report exhibit ‘X’.

Respondent no.2 though duly served by private mode of

service for fnal disposal of the petition, none appeared

for respondent no.2. Hence, petition to proceed further.

aaa/-

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crwp 470.22.odt

2.

Heard fnally with the consent of learned counsel

for the parties.

3.

Mr Naik, learned counsel for the petitioner invited

my attention to the impugned order passed below

exhibit 5 in criminal appeal no.27 of 2021 dated

4.10.2021. He submitted that the petitioner/appellant

was directed to deposit 50% of the cheque amount with

the appellate Court within a period of four weeks from

the date of the order. Failure to comply the said order

may result in dismissal of the appeal automatically. He

submitted that, the petitioner/appellant accused has

deposited 30% of the amount of cheque in question with

the trial court as per the order passed by this Court

dated 27.4.2022 and complied with the same. The

petitioner/accused is ready to work out the appeal. It

may not be appropriate to dismiss the appeal only

because the appellant could not deposit 50% of the

amount of the cheque in dispute. He submitted that,

such a condition cannot be imposed which may take

away right of appellant. He, therefore, urged to modify

aaa/-

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crwp 470.22.odt

the order passed by the learned Additional Sessions

Judge, Bhusawal in criminal appeal no.27 of 2021.

4.

Mr. Borade, learned APP for the State fairly

conceded the position that statutory right of

appellant/accused cannot be taken away only because

he could not comply with the stringent conditions.

Appeal needs to be decided on its own merits.

5.

I have considered the submissions of the learned

counsel for the petitioner and the learned APP for the

state. I have gone through the impugned order passed

below exhibit 5 in Criminal Appeal No.27 of 2021 dated

4.10.2021 as well as the earlier order passed by this

Court (Coram : R.G.Avachat, J.) dated 27.4.2022.

6.

The petitioner has placed on record a receipt

issued by the concerned court regarding compliance of

the order passed by this Court dated 27.4.2022. He

seems to have deposited Rs.1,27,500/- with the

concerned Court towards 30% of the amount of the

cheque in dispute and complied with the order.

aaa/-

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crwp 470.22.odt

7.

Now coming to the stringent condition imposed by

the learned Additional Sessions Judge, Bhusawal while

passing the order dated 4.10.2021. On perusing the

impugned order paragraph no.3, it would reveal that the

learned Additional Sessions Judge was pleased to

suspend the execution of substantive sentence on

condition that the appellant/petitioner shall deposit

50% of the cheque amount within four weeks. It is

further made clear by the Additional Sessions Judge,

Bhusawal that failure to comply the above said order

will render dismissal of appeal automatically. The

observations made by the learned Additional Sessions

Judge, Bhu