DIPAKBHAI CHAMPAKLAL THAKKAR vs STATE OF GUJARAT

R/SCR.A/14771/2026 JUDGMENT DATED: 30/10/2026
(GJHC240772972026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 14771 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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Approved for Reporting Yes No
No
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DIPAKBHAI CHAMPAKLAL THAKKAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR YASH J PATEL(11240) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 30/10/2026

JUDGMENT
1. Present petition is filed under Article 227 of the
Constitution of India the petitioner has prayed for following
reliefs :-
“A) Your Lordships may be pleased to admit and allow this
petition;
(B) Your Lordships may be pleased to issue a writ of
certiorari or any other appropriate writ, order or direction
quashing and setting aside the warrant issued under
Section 70 of the CrPC to the Padra Police Station by the Ld.
Additional Chief Judicial Magistrate, Padra, pursuant to the
judgment and order dated 19.11.2025 passed in Criminal
Case No. 3240 of 2019; [ANNEXURE - A]
(C) In the alternative, Your Lordships may be pleased to
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convert the said warrant into a bailable warrant on such
terms as YOUR LORDSHIPS may deem fit, permit the
petitioner to appear before the Ld. Trial Court within such
time as may be fixed and to apply under Section 430(3) of
the BNSS for release on bail for such period as will afford
him sufficient time to present his appeal and obtain the
orders of the Appellate Court, and direct the Ld. Trial Court
to decide such application on the same day;
(D) Your Lordships may be pleased to direct that the
petitioner shall not be arrested in execution of the said
warrant until the Ld. Sessions Court, Vadodara decides his
applications for condonation of delay and suspension of
sentence, or for such period as Your Lordships may deem fit;
(E) Pending admission, hearing and final disposal of this
petition, Your Lordships may be pleased to stay the
execution of the said warrant and direct that no coercive
action be taken against the petitioner pursuant thereto;
(F) Your Lordships may be pleased to pass such other and
further orders as may be thought just and proper in the facts
and circumstances of the present case.”
2. Facts of the case :-
2.1. Respondent No.2 filed complaint on 21.11.2019 alleging
that cheque no.626146 dated 14.09.2019 for Rs.5 lakhs and
cheque No.003730 dated 25.09.2019 for Rs.31 lakhs, said to
have been issued by the petitioner were dishonored on
26.09.2019 with endorsement “funds insufficient” and “account
closed” respectively. The complaint was registered as Criminal
Case No.3240 of 2019.
2.2 Upon registration of the complaint, process were issued;
trial was proceeded wherein at the end of the trial, the learned
court below passed the judgment dated 19.11.2025 and
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convicted the petitioner for the offence punishable under Section
138 of the NI Act and sentenced to undergo imprisonment for
two years and directed him to pay compensation of
Rs.45,00,000/- to the respondent no.2 within thirty days.
Learned Trial Court further directed that the sentence would
commence from the date on which the petitioner is produced and
sent to jail on warrant and directed to issue warrant under
section70 of Cr.P.C. to the Padra Police Station.
2.3. It is case of the petitioner that petitioner intend to
challenge the said judgment by preferring Criminal Appeal before
the Sessions Judge, Vadodara with application for condonation
of delay and application for suspension of sentence. It is also
case of the petitioner that he is ready to deposit 20% of the
compensation. The warrant issued by the learned Trial Court
remains and petitioner apprehends that the moment he appears
before the learned Sessions Court, he will be taken into custody
in execution of warrant and his appeal and prayer for
suspension of sentence would become infructuous. Therefore,
petitioner has prayed for reliefs as aforesaid.
3. Heard learned advocates for the parties.
4. Learned Advocate for the petitioner would submit that the
relief claimed by the petitioner is squarely governed by the
decision of this Court rendered in case of Sharad Jethalal
Savla vs. State of Gujarat & 2 [Criminal Misc. Appliction
No.19862 of 2015 dated 14.11.2016] . He would further
submit that since the accused was not present on the date of
passing of the judgment, he could not move the application to
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get the bail to file appeal under Section 374 of the Code. He
would further submit that that since the Court below has issued
the NBW under Section 418(2) of the code, learned first appellate
Court shall not entertain the appeal under Section 374 of the
Code; without the accused being surrendered to the custody. He
would further submit that an appeal under Section 374 of the
Code is statutory right available to the accused; but since the
petitioner is not enlarged on bail, he could not prefer an appeal
to avail the statutory remedy as the NBW issued against the
petitioner and petitioner is left with no option; but to surrender
himself before the jail authority pursuant to the said warrant. He
would further submit that this Court may convert the NBW into
the bailable warrant and further permit the petitioner to avail
the bail to approach the first appellate court to challenge his
conviction and sentence.
4.1. By making above submissions, he would submit to allow
the petitioner.
5. On the other hand, learned APP appearing for the
respondent No.1–State has vehemently opposed the petition and
submitted that Court below cannot exercise the power under
Section 389(3) of the Code once the judgment of conviction and
sentence is passed on that day while the accused remained
absent. He would rely on judgment passed by this Court in
Special Criminal Application No.12711 of 2023 dated
07.10.2023 (Bhoomi Exim (proprietary concern) v/s. State of
Gujarat] .
5.1. Making above submissions, it is submitted to dismiss the
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petition.
6. Having heard learned Advocates appearing for the
respective parties and considering the facts of the present case
and the law laid down by this Court in case of Sharad Jethalal
Savla (supra) , at the outset, it is required to be noted that
learned Court below passed judgment of conviction and sentence
on 19.11.2025. It is not in dispute that on that day the
petitioner was absent before the Court. After appreciating the
evidence of the complainant, learned Trial Court reached to the
conclusion that the complainant has succeeded in proving the
case against the accused and convicted him. Sentence as stated
herein above is also inflicted. Issue raised by the learned
advocate for the petitioner is squarely covered by judgment
passed by this Court in the case of Bhoomi Exim (supra). In the
said judgment, this Court in para 8 to 16 has held as under :-
“8. Applying the ratio of Sharad Jethalal Savla (supra); if
the facts of the present case is examined; to be noted that
the petitioner herein has never preferred any application
under Section 389(3) of the Code before the Court below by
remaining present; but petitioner now seeking relief to allow
him to prefer such application to get the provisional bail. In
Sharad Jethalal Savla (supra), this Court has clearly held
that the judgment can be pronounced in absence of the
accused under Section 353(7) of the Code and also justified
the issuance of the NBW under Section 418(2) of the Code
for securing presence of the accused to undergo the
sentence. This Court has also disapproved the claim that in
absence of the accused on the date of pronouncement of the
judgment, an Advocate can move the application under
Section 389(3) of the Code.
9. This Court in case of Ishwarbhai Hirabhai Chunara
(supra) permitted the petitioner to file the application under
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Section 389(3) of the Code for provisional bail to enable him
to prefer the appeal before the first appellate Court against
the conviction and sentence; relevant paragraph 7 thereof
reads thus:
“7 I am inclined to give one opportunity to the
applicant herein to appear before the learned 4 th
Additional Chief Judicial Magistrate, Vadodara in
person with his advocate. On the day and date the
applicant herein appears before the learned
Magistrate, it will be open for him to file an application
under Section 389(3) of the Cr.P.C. for provisional bail
to enable him to prefer a criminal appeal before the
Sessions Court against the conviction and sentence.
The criminal appeal before the Sessions Court could
have been registered only after an appropriate order
under Section 389(3) of the Cr.P.C. was passed by the
trial Court.”
10. Now, the question arise as to within what time the
petitioner – accused can file an application under Section
389(3) of the Code before the learned Court below for
provisional bail. For that purpose, let refer to Section 389 of
the Code.
“Section 389. Suspension of sentence pending the
appeal; release of appellant on bail
(1) Pending any appeal by a convicted person, the
Appellate Court may, for reasons to be recorded by it
in writing, order that the execution of the sentence or
order appealed against be suspended and, also, if he
is in confinement, that he be released on bail, or on his
own bond.
a [Provided that the Appellate Court shall, before
releasing on bail or on his own bond a convicted
person who is convicted of an offence punishable with
death or imprisonment for life or imprisonment for a
term of not less than ten years, shall give opportunity
to the Public Prosecutor for showing cause in writing
against such release :
Provided further that in cases where a convicted
person is released on bail it shall be open to the Public
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Prosecutor to file an application for the cancellation of
the bail.]
(2) The power conferred by this section on an Appellate
Court may be exercised also by the High Court in the
case of an appeal by a convicted person to a Court
subordinate thereto.
(3) Where the convicted person satisfies the Court by
which he is convicted that he intends to present an
appeal, the Court shall,
(i) where such person, being on bail, is sentenced to
imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been
convicted is a bailable one, and he is on bail, order
that the convicted person be released on bail, unless
there are special reasons for refusing bail, for such
period as will afford sufficient time to present the
appeal and obtain the orders of the Appellate Court
under subsection (1) and the sentence of imprisonment
shall, so long as he is so released on bail, be deemed
to be suspended. xxx xxxx xxx”
11. Section 389(1) and (2) of the Code provides power to the
appellate court to suspend the execution of the sentence of
the appealed against and can release accused on bail if he
is in confinement. Sub-section (3) of Section 389 provides
the power to the Court which has convicted the accused to
suspend the sentence and release the convict person on bail
if the sentence to imprisonment for a term not exceeding
three years and where such person is convicted is a bailable
one and he is on bail. To be noted that the power of the
court which has convicted the accused to release the
convicted person on bail and to stay the conviction and
punishment is limited upto the time period within which the
appeal is to be preferred.
12. Section 374 of the Code provides appeal from conviction.
In view of Section 374(3) of the Code if person held guilty
and convicted for the offence in trial held by learned JMFC
or ACJM, the appeal shall lie before the Sessions Court. The
limitation period for filing appeal is provided in Article 115 of
the Limitation Act, 1963. If the appeal is to be filed to the
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R/SCR.A/14771/2026 JUDGMENT DATED: 30/10/2026
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High Court, the limitation is 60 days from the date of the
sentence or order and if the appeal is to be filed to any other
Court, the limitation provided is 30 days from the date of the
sentence or the order. Article 115 (b) of the Limitation Act
reads thus:
Description of suit Period of
limitation
Time from which
period begins to run
(a)from a sentence
of death passed by
a court of session
or by a High Court
in the exercise of
its jurisdiction;
original criminal
Thirty days
Date of sentence
(b) from any other
sentence or any
order not being an
order of acquittal—
Sixty days
Date of sentence or
order
(i) to the High
Court Sixty days.
The date of the
sentence or order.
Thirty days
Date of sentence or
order
(ii) to any other
court Thirty days.
The date of
sentence or order.
13. In P. Ramakrishnan - Petitioner Versus Rani Rambai
Crl.O.P. No. 28838 of 2011 decided on 28.2.2012, the
Madras High Court in paragraph 7 has held as under:
“7. The narration of above facts would clearly go to
show that the present Petition is not only highly
misconceived but also it amounts to a clear abuse of
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process of Court. Under Section 389(3), Cr.P.C,, 1973
the Trial Court has got power to suspend the sentence
for a maximum period within which an Appeal is to be
preferred by the convict as per the provisions of the
Limitation Act. The learned Magistrate lacks
jurisdiction to grant suspension beyond 30 days from
the date of imposition of sentence. Therefore, the
learned Magistrate was right in returning the Petition
filed by the Petitioner seeking extention of suspension
of sentence. It needs to be mentioned that the date of
conviction is on 19.10.2011 and the sentence was
suspended rightly by the learned Magistrate till
18.11.2011.”
14. Thus, it is clear that under Section 389(3) of the Code,
the Court below holds the powers to suspend the sentence
for maximum period within which the appeal is to be
preferred by the convict as per the provisions of the
Limitation Act. Clear exposition of law indicates that the
learned Court below can exercise the powers of suspending
the sentence and release the accused on bail only for a 30
days from the date of the pronouncement of the sentence;
thereafter it lacks jurisdiction.
15. In present case, court below has passed the judgment on
29/08/2023 and convicted the accused and passed
sentence. The jurisdiction of the Court below to entertain the
application under Section 389(3) of the Code expires in 30
days as the appeal time period provided under Article 115(b)
of the Limitation Act is 30 days. Prayer to allow petitioner to
file application under Section 389(3) of the Code now cannot
be allowed to. Thus, the Court below after 29/09/2023
cannot exercise the powers under Section 389(3) of the
Code. Thus, both the petitions are highly misconceived in
law and deserves to be dismissed.
16. For the foregoing reasons, the petitions are dismissed at
the admission stage.”
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7. The judgment and order passed by this Court in Bhoomi
Exim (Proprietary concern) (supra) is confirmed by the Hon’ble
Supreme Court in the Special Leave Petition (Criminal) Diary No.
9929 of 2024 vide order dated 18.03.2024.
8. Applying the aforesaid ratio to the facts of the present case,
present petition sans merits and deserve to be dismissed.
Accordingly, petition is dismissed at admission stage.
(J. C. DOSHI,J)
SATISH
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