R/SCR.A/8043/2025 ORDER DATED: 04/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 8043 of 2025 ========================================================== MOHAMMAD NAEIM MOHAMMAD HUSSAIN SHAIKH Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR RAMNANDAN SINGH(1126) for the Applicant(s) No. 1 MS MAITHILI MEHTA, APP for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 04/07/2025 ORAL ORDER Leave to amend. 1. Rule. Learned advocates waive service of rule for the respective respondents. 2. Heard learned advocates for the respective parties. Though served none appears for the respondent No.2. 3, The present petition is filed by the petitioner seeking modification in the condition No.7(4)(a) and 7(4)(a) imposed by the District and Sessions Judge, Jamnagar vide order dated 26.05.2025 in Criminal Appeal No.250 of 2025. The condition condition No.7(4)(a) and 7(4)(a) reads as under: “(a) He shall furnish bound in the sum of Rs.3,00,000/- with two sureties of like amount before the learned trial Court. (b) He shall deposit an amount of Rs.3 lakhs i.e. 50 of the amount of the fine before this Court within a period of 45 days from today and another amount of Rs.3 lakhs R/SCR.A/8043/2025 ORDER DATED: 04/07/2025 i.e. 5% of the amount of fine before this Court within a period of 60 days from today.” 4. Learned advocate for the petitioner submits that the petitioner was convicted by the trial Court vide order dated 03.12.2018 in Criminal Case No. 3707 of 2011 under Section 138 of the NI Act, whereby the trial Court was pleased to hold the petitioner guilty for the offence punishable under Section 138 of the NI Act and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs. 60,00,000/-, and in default thereof, to undergo further simple imprisonment for three months. The conviction was recorded ex parte because the applicant was not available for trial despite the issuance of a non-bailable warrant and publication in the newspaper. Although an advocate was engaged, subsequently, the learned advocate appearing for the applicant did not remain present, and therefore, an ex parte order came to be passed recording the conviction of the applicant. The applicant came to know about the order only in May 2024, and thereafter filed an appeal; however, there was a delay of five years and seven months. The application for condonation of delay was rejected, and thereafter, the applicant approached this Court by filing Special Criminal Application No. 13227 of 2024, which came to be partially allowed, and the delay was condoned upon the imposition of costs of Rs. 20,000/-. The applicant had also deposited 20% of the Learned advocate for the petitioner submits that the petitioner was convicted by the trial Court vide order dated 03.12.2018 in Criminal Case No. 3707 of 2011 under Section 138 of the NI Act, whereby the trial Court was pleased to hold the petitioner guilty for the offence punishable under Section R/SCR.A/8043/2025 ORDER DATED: 04/07/2025 138 of the NI Act and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs. 60,00,000/-, and in default thereof, to undergo further simple imprisonment for three months. The conviction was recorded ex parte because the applicant was not available for trial despite the issuance of a non-bailable warrant and publication in the newspaper. Although an advocate was engaged, subsequently, the learned advocate appearing for the applicant did not remain present, and therefore, an ex parte order came to be passed recording the conviction of the applicant. The applicant came to know about the order only in May 2024, and thereafter filed an appeal; however, there was a delay of five years and seven months. The application for condonation of delay was rejected, and thereafter, the applicant approached this Court by filing Special Criminal Application No. 13227 of 2024, which came to be partially allowed, and the delay was condoned upon the imposition of costs of Rs. 20,000/-. The applicant had also deposited 20% of the cheque amount before the trial Court, which has already been withdrawn. Thereafter, the applicant approached the Sessions Court for suspension of sentence, and the said appeal came to be allowed with the aforesaid conditions; however, the petitioner seeks modification of condition Nos. 7(4)(a) and 7(4)(b) imposed therein. 5. Upon perusal of the documents on record, it appears that the cheque amount was Rs. 30,00,000/-, and the petitioner has already undergone more than one and half years of imprisonment. The Sessions Court imposed onerous conditions, due to which the petitioner could not comply with the conditions imposed by the Sessions Court, and as a result, had left no R/SCR.A/8043/2025 ORDER DATED: 04/07/2025 option except to undergo the sentence, which would render the criminal appeal infructuous, as the cheque amount is Rs. 30,00,000/-, and 20% of the said amount has already been deposited by the petitioner and now, the petitioner is ready to deposit bond amount of Rs. 3,00,000/- which was imposed by the Sessions Court within one month. 6. Considering the law laid down by the Hon’ble Apex Court in Jamboo Bhandari v. Madhya Pradesh State Industrial Development Corporation Limited, (2023) 10 SCC 446, considering the Section 148 of the NI Act, and considering the overall facts and circumstances of the case, the matter requires consideration. Condition Nos. 7(4)(a) and 7(4)(b) imposed by the learned District and Sessions Judge, Jamnagar, vide order dated 26.05.2025 in Criminal Appeal No. 250 of 2025 are modified to the following extent: “7(4)(a) The appellant shall deposit an amount of Rs. 3,00,000/- within 30 days from the date of his release and with one solvent surety of Rs. 1,50,000/-, before the learned trial Court. 7(4)(b) This condition is hereby deleted.” 6. In view of the above, the petition stands allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted. (HASMUKH D. SUTHAR,J) ALI Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: ISTAYAK ALI(HC01093), PRIVATE SECRETARY, at High Court of Gujarat on 05/07/2025 17:40:18