HITESH H. TRIVEDI Vs. VIPULKUMAR CHIMANLAL

JUDGEMENT

(1.) RULE . Service of rule is waived by Ms. Jhaveri, Ld. APP for respondent no. 2 and Ms. Kruti Shah, Ld. Advocate for respondent no. 1.

(2.) THE petitioner is original accused; whereas the respondent no. 1 is original complainant and respondent no. 2 -State is formal party. The petitioner has been convicted for committing offence under section 138 of the Negotiable Instruments Act [for short 'NI Act'] by the 11th Addl. Sr. Civil Judge and Judicial Magistrate First Class, Surat in Criminal Case No. 62/2005 by judgment and order dated 31/3/2009. Such judgment was confirmed by the 3rd Addl. District & Sessions Judge, Surat, on 11/3/2011 in Criminal Appeal No. 33/2009 preferred by the petitioner. Thereby both, the trial Court and first appellate Court have confirmed the conviction of simple imprisonment of the petitioner for six months and award of compensation of Rs. 4,51,000/ - being the amount of cheque involved in the complaint. Thereby, there are concurrent findings of fact and confirmation of sentence against the present petitioner.

(3.) THE respondent no. 1 has resisted the application by filing affidavit -in -reply wherein it is contended that if the petitioner was having financial difficulty, he should have availed services of free legal aid, but when he has not approached any such authority, it shows that he was having sufficient means and that he is very much aware about the provisions of law. So far as the story regarding fracture and expenditure is concerned, it is submitted that the documents produced by the petitioner on record does not show the details of injury or hospitalization since the documents on record simply confirms that the petitioner was under treatment from 6/4/2012 to 13/4/2012 i.e. only for a week. It is further submitted that the petitioner has suppressed material facts from this Court since arrest warrant has already been issued against the petitioner as he failed to surrender in time as per the impugned judgment and that there were three interconnected cases against the present petitioner, one Reshmaben Desai and in Criminal Appeal Nos. 31 to 33 of 2009, both of them have filed joint Pursis on 19/9/2009 confirming that they will pay Rs. 11 lacs before 31/12/2009. However, they have failed to comply with such undertaking before the appellate Court, copy of which is produced at Annexure -R -1. It is further contended that when all these cases were heard and decided together and when revision applications in two of the cases filed before this Court, well in time, being Criminal Revision Application No. 138/2011 and when the High Court has dismissed both revision applications on 6/9/2012, now there is no reason or substance for the petitioner to file separate revision. It is further contended that in fact, because of absence of the petitioner before the trial Court, the trial Court has to issue a warrant and declaration under section 82 of the Code of Criminal Procedure to secure his presence. Copy of such declaration is also produced at Annexure -R -1 with the affidavit.