Shri.Hiren Babulal Adani v. Shri.Prakash Chimanlal Seth And ANR

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** MAT/66/2024 IA No.CAN/1/2024, CAN/2/2024 Shri Hiren Babulal Adani Vs.

Shri Prakash Chimanlal Seth and another Mr.Arul Prasanth ... for the appellant Mr. Sumit Karmakar ... for the respondent No.2 November 14, 2024 [SR] Item no. 3 1.

The appellant is aggrieved by judgment and order dated 03.10.2024 passed by Single Bench of this Court whereby the appellant accused in a proceeding under Section 138 of the Negotiable Instruments Act was granted leave to deposit 20% of the amount as a precondition for admission of the of the appeal against the order of conviction dated 26.09.2023 passed by Judicial Magistrate, Second Court at Port Blair in CR Case No. 27 of 2020.

2.

Since after conviction the appellant filed an appeal before the Sessions Judge, Port Blair that was admitted on 14th November, 2023 and an unconditional stay of the conviction was passed until disposal of the appeal.

3.

Such unconditional stay without assigning any appropriate reasons is extremely unusual and borders on illegality.

4.

In that view of the matter the impugned order directing the payment 20% of the amount of the value of the instrument as a precondition for staying of conviction passed by Single Bench cannot be faulted.

5.

Mr. Prasanth, learned counsel for the convicted appellant would first argue that there is no prayer for modification or imposition of condition for admission of the appeal by the Sessions Judge. The prayers were for simplicitor quashing of the order dated 14.11.2023 admitting appeal No.9 of 2023. He therefore submits that the Single Judge erred in imposing the condition of 20% of the value of the instrument. 6.

It is next argued that the cause title of the writ petitioner describing the application as under Article 226 and 227 read with section 482 of the Cr.P.C, 1973 is unheard under the Appellate Side Rules of the High Court at Calcutta. The writ petition should have been dismissed on this ground. 7.

He next argued that as on the date of filing of the writ petition the IPC and the Cr.P.C were no longer in existence and were replaced by the BNS and BNSS. The revisional jurisdiction of the High Court formerly under Section 482 of the Cr.P.C is now under Section 528 of the BNSS.

8.

There is substance in the argument of Mr. Prasanth. The argument, however, is technical in nature. The writ petitioner ought to have been more cautious in naming the correct sections under the correct Act in the Cause Title of the writ petition.

9.

While it is true that criminal writ petitions are generally not filed in this High Court, writ petitions under Article 226 of

the Constitution are definitely maintainable in respect of criminal proceedings. Such writ petition under Article 226 and 227 and 482 are filed on a daily basis in a majority of the High Courts in this Country.

10.

The Registry ought to have been more cautious in allowing filing of the writ petition in the manner that has been so done.

11.

This Court therefore, directs the Registrar of the Circuit Bench of the Port Blair to look into the cause title, go through the aforesaid order and ensure that the writ petition in future are filed in terms of the Appellate Side Rules in the High Court at Calcutta.

12.

Insofar as the argument that there is no prayer for including pre deposit as a condition for admission and hearing of the appeal, this Court has already noted that an unconditional stay order of conviction under Section 138 of the Negotiable Instrument Act is not generally passed. 13.

In most case amounts not less than 50% of the value of the instrument are ordered to be deposited as a precondition for admission of appeal by the Sessions Court.

14.

In the instant case the Single Bench has done what ought to have been done by the Sessions Judge. Mere absence of a prayer cannot stand in the way of substantial relief under Article 226 of the Constitution of India. It is essentially for this purpose that a general prayer in the nature of 'any other relief or reliefs as the Court may deem fit and proper' is made. Even if such prayer is not made the writ court is not debarred from passing orders in the interest of justice and for the purpose of

protection of fundamental rights even without a formal prayer based on the pleadings on records.

15.

In view of aforesaid, the appeal is dismissed. 16.

There shall be no order as to costs.

( Rajasekhar Mantha, J. ) ( Partha Sarathi Sen, J. )