MAVJIBHAI JIVRAJBHAI BAVISHI vs STATE OF GUJARAT
- Court
- Gujarat High Court
R/SCR.A/12103/2026 JUDGMENT DATED: 23/10/2026
(GJHC240618382026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12103 of 2026
With
R/SPECIAL CRIMINAL APPLICATION NO. 12165 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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MAVJIBHAI JIVRAJBHAI BAVISHI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR SAVAN N PANDYA(5600) for the Applicant(s) No. 1
MS POOJA D RAVAL(11867) for the Applicant(s) No. 1
MR PARTHIV BHATT for the Respondent(s) No. 2
MR JAY MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 23/10/2026
COMMON JUDGMENT
1 Since the issue raised in the these petitions are
similar, they are being decided by a common
judgment. The facts of Special Criminal Application
No.12103 of 2026 are taken for the purpose of
adjudication.
Present petition is filed with the following reliefs:
“8…
a) That Your Lordships may be pleased to admit and
allow this petition;
b) That your Lordships may be pleased to issue
appropriate writ, order or direction and thereby quash
and set aside the impugned order dated 24.07.2026
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below exhibit 4 qua the condition to deposit 20%
amount of compensation passed by Additional Sessions
Judge, City Civil & Sessions Court, Ahmedabad in
Criminal Appeal No. 1659 of 2026 Annexure-A) and
accordingly further be pleased to delete the condition
namely "subject to deposition of 20% amount of
compensation within 60 days from the date of this
order, before the concerned Trial Court" from the
impugned order dated 24.07.2026 below exhibit 4
passed by Additional Sessions Judge, City Civil &
Sessions Court, Ahmedabad in Criminal Appeal No.
1659 of 2026 (Annexure-A) in the interest of justice;
c) That your Lordships may be pleased to issue
appropriate writ, order or direction and thereby quash
and set aside the order dated 24.07.2026 passed below
exhibit 5 by Additional Sessions Judge, City Civil &
Sessions Court, Ahmedabad in Criminal Appeal No.
1659 of 2026 (Annexure-B) and further be pleased to
allow the prayers of the application below exhibit 5
filed by the present petitioner in Criminal Appeal No.
1659 of 2026 (Annexure-G) in the interest of justice;
d) Pending admission, hearing, and till final disposal of
this petition, your Lordships may be pleased to stay the
implementation and operation of impugned order dated
24.07.2026 below exhibit 4 qua the condition of
deposition of 20% amount of compensation passed by
Additional Sessions Judge, City Civil & Sessions Court,
Ahmedabad in Criminal Appeal No. 1659 of 2026
(Annexure-A) in the interest of justice; and
e) Grant such other and further relief(s) as deemed just
and proper by this Hon'ble Court in the interest of
justice.”
2 Heard the learned advocate Mr. Savan Pandya for the
petitioner, learned advocate Mr. Parthiv Bhatt for the
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respondent No.2 and learned APP Mr. Mehta for the
respondent-State.
3 Learned advocate Mr. Pandya submits that the
petitioner was convicted for the offence punishable
under Section 138 of the Negotiable Instruments Act,
1881, vide judgment and order dated 25.06.2026. It
is submitted that the petitioner filed an application
seeking suspension of the sentence, which came to
be allowed by the learned Appellate Court vide order
dated 24.07.2026, subject to the condition that the
petitioner deposit 20% of the compensation amount
within a period of 60 days from the date of the order.
It is submitted that, thereafter, the petitioner filed an
application below Exhibit 5 seeking waiver of the
condition requiring deposit of 20% of the
compensation amount, as imposed by the learned
Appellate Court while suspending the sentence.
However, the said application came to be rejected by
the learned Court vide order dated 24.07.2026, which
is impugned in the present petition.
3.1 Learned advocate Mr. Pandya has relied upon
the decision rendered by the Apex Court in
Jamboo Bhandari v. Madhya Pradesh State
Industrial Development Corporation Limited
and Others, reported in (2023) 10 SCC 446 , and
submits that exceptional circumstances exist in
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the present case. It is submitted that, as per the
allegations, the transactions in question involved
the borrowing of an amount of Rs.62 lakh, against
which different cheques were issued, resulting in
the filing of three separate complaints. It is further
submitted that, in two of the complaints wherein
the judgments and orders of conviction came to be
passed, the petitioner had engaged an advocate;
however, the advocate did not remain present, and
the judgments and orders of conviction came to be
passed in the petitioner’s absence. It is submitted
that, upon receiving the judgments and orders of
conviction, the petitioner inquired into the status
of the third case and came to know that the same
was pending adjudication. The petitioner,
therefore, engaged another advocate, who
contested the said criminal case, ultimately
resulting in the petitioner’s acquittal.
3.2 It is submitted by the learned advocate Mr.
Pandya that, as the petitioner’s case was not
properly presented before the learned Trial Court
through an advocate, resulting in the judgments
and orders of conviction, the petitioner deserves a
fair opportunity to establish his case before the
learned Appellate Court. It is further submitted
that the petitioner’s financial condition is not
sound and that, if the condition requiring deposit
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of 20% of the compensation amount is not waived,
the petitioner would be deprived of his right to
pursue the appeals. In view of the above, learned
advocate Mr. Pandya submits that the impugned
order dated 24.07.2026, passed below Exhibit 5,
deserves to be quashed and set aside, and the
petitioner deserves an opportunity to establish his
case before the learned Appellate Court without
being subjected to the condition of depositing 20%
of the compensation amount.
4 Learned advocate Mr. Bhatt, appearing for
respondent No. 2, submits that merely because the
petitioner has been acquitted in the third case, the
same cannot be considered an exceptional
circumstance, as contemplated by the Apex Court in
the case of Jamboo Bhandari (supra) . It is
submitted that, if such an explanation were to be
considered an exceptional circumstance, in every
case, an accused could plead that he was not
represented by an advocate and, therefore, deserved
a fair opportunity to present his case. It is further
submitted that, when the petitioner was aware of the
pendency of the complaint, it was incumbent upon
him to remain in contact with the learned advocate
engaged by him. Merely by shifting the responsibility
onto the learned advocate, the petitioner cannot
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absolve himself of the liability arising from the
criminal proceedings. In view of the above, it is
submitted that no interference is warranted by this
Court and that the present petition deserves to be
dismissed.
5 Having considered the submissions made by the
learned advocates for the respective parties and the
facts discussed hereinabove, it emerges that, in
relation to the alleged borrowing of Rs.62 lakh, three
separate complaints came to be filed, being Criminal
Case Nos. 98398 of 2023, 98125 of 2023 and 97856
of 2022. On perusal of the judgments and orders of
conviction, it appears that the name of the learned
advocate representing the present petitioner is
mentioned therein. However, in paragraphs 4 and 5,
the learned Court has observed that neither the
accused nor his advocate remained present and,
therefore, the judgments and orders of conviction
came to be passed in the absence of assistance from
the advocate representing the present petitioner. The
said judgments and orders were passed on
25.06.2026. Thereafter, as submitted by the
petitioner, on receiving the judgments and orders of
conviction, he inquired about the status of the third
case, being Criminal Case No. 97856 of 2022. The
petitioner came to know that the said case was
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pending adjudication before the learned competent
Court and, accordingly, engaged an advocate. On
perusal of the judgment produced by learned
advocate for the petitioner, it emerges that the
learned advocate placed rebuttal evidence on record
on behalf of the petitioner, which ultimately resulted
in the judgment and order of acquittal dated
30.09.2026.
6 At this stage reference of the decision rendered by
the Apex Court in the case of Jamboo Bhandari
(supra) is required to be made. The relevant
paragraphs are reproduced hereinbelow:
“5. The paragraph '8' of the decision of this Court in the case
of Surinder Singh Deswal Alias Colonel S.S. Deswal and
Others¹ reads
thus: -
"8. Now SO far as the submission on behalf of the
appellants that even considering the language used in
Section 148 of the NI Act as amended, the appellate
court "may" order the appellant to deposit such sum
which shall be a minimum of 20% of the fine or
compensation awarded by the trial court and the word
used is not "shall" and therefore the discretion is vested
with the first appellate court has construed it as
mandatory, which according to the learned Senior
Advocate for the appellants would be contrary to the
provisions of Section 148 of the NI Act as amended is
concerned, considering the amended Section 148 of the
NI Act as a whole to be read with the Statement of
Objects and Reasons of the amending Section 148 of the
NI Act, the word used is "may", it is generally to be
construed as a "rule" or "shall" and not to direct to
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deposit by the appellate court is an exception for which
special reasons are to be assigned. Therefore amended
Section 148 of the NI Act confers power upon the
appellate court to pass an order pending appeal to
direct the appellant-accused to deposit the sum which
shall not be less than 20% of the fine or compensation
either on an application filed by the original
complainant or even on the application file by the
appellant-accused under Section 389 CrPC to suspend
the sentence. The aforesaid is required to be construed
considering the fact that as per the amended Section
148 of the NI Act, a minimum of 20% of the fine or
compensation awarded by the trial court is directed to
be deposited and that such amount is to be deposited
within a period of 60 days from the date of the order,
or within such further period not exceeding 30 days as
may be directed by the appellate court for sufficient
cause shown by the appellant. Therefore, if amended
Section 148 of the NI Act is purposively interpreted in
Section 148 of the NI Act, but also Section 138 of the
NI Act. The Negotiable Instruments Act has been
amended from time to time so as to provide, inter alia,
speedy disposal of cases relating to the offence of the
dishonour of cheques. So as to see that due to delay
tactics by the unscrupulous drawers of the dishonoured
cheques due to easy filing of the appeals and obtaining
stay in the proceedings, an injustice was caused to the
payee of a dishonoured cheque, who has to spend
considerable time and resources in the court proceedings
to realise the value of the cheque and having observed
that such delay has compromised the sanctity of the
cheque transactions. Parliament has thought it fit to
amend Section 148 of the NI Act. Therefore, such a
purposive interpretation would be in furtherance of the
Objects and Reasons of the amendment in Section 148
of the NI Act and also Section 138 of the NI Act.
(underline supplied)"
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6. What is held by this Court is that a purposive
interpretation should be made of Section 148 of the N.I.
Act. Hence, normally, Appellate Court will be justified in
imposing the condition of deposit as provided in Section
148. However, in a case where the Appellate Court is
satisfied that the condition of deposit of 20% will be unjust
or imposing such a condition will amount to deprivation of
the right of appeal of the appellant, exception can be made
for the reasons specifically recorded.
7. Therefore, when Appellate Court considers the prayer
under Section 389 of the Cr.P.C. of an accused who has
been convicted for offence under Section 138 of the N.I.
Act, it is always open for the Appellate Court to consider
whether it is an exceptional case which warrants grant of
suspension of sentence without imposing the condition of
deposit of 20% of the fine/compensation amount. As stated
earlier, if the Appellate Court comes to the conclusion that
it is an exceptional case, the reasons for coming to the said
conclusion must be recorded.
8. The submission of the learned counsel appearing for the
original complainant is that neither before the Sessions
Court nor before the High Court, there was a plea made by
the appellants that an exception may be made in these
cases and the requirement of deposit or minimum 20% of
the amount be dispensed with. He submits that if such a
prayer was not made by the appellants, there were no
reasons for the Courts to consider the said plea.”
7 Keeping in mind the ratio and examining the fact of
the instant case where it appears that in the absence
of proper assistance before the learned Magistrate,
the judgments and orders of conviction came to be
passed. Further, in the third case, which also arose
out of the same transaction, the petitioner was
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represented by an advocate, and the proceedings
ultimately resulted in a judgment and order of
acquittal. It is also submitted that the petitioner’s
financial condition is not sound enough to enable him
to deposit 20% of the compensation amount. In the
opinion of this Court if a fair opportunity to establish
his case is not afforded to the petitioner before the
learned Appellate Court, he would be deprived of his
right to appeal. In the aforesaid circumstances, this
Court finds that the petitioner’s case falls within the
category of exceptional circumstances. For the
reasons recorded hereinabove, the petitioner’s
application seeking waiver of the condition of
depositing 20% of the compensation amount, filed
below Exhibit 5, deserves to be allowed.
8 Resultantly, the present petitions are allowed. The
impugned orders dated 24.07.2026 passed below
Exhibit 5 by the learned Additional Sessions Judge,
City Civil & Sessions Court, Ahmedabad, in Criminal
Appeal Nos. 1659 of 2026 and 1660 of 2026 are
hereby quashed and set aside. Consequently, the
applications below Exhibit 5 filed by the petitioners in
the respective appeals are allowed.
(M. K. THAKKER,J)
M.M.MIRZA
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