{"id":241407,"date":"2009-01-30T00:00:00","date_gmt":"2009-01-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/good-value-marketing-company-vs-montex-corporation-another-on-30-january-2009"},"modified":"2018-02-12T23:59:40","modified_gmt":"2018-02-12T18:29:40","slug":"good-value-marketing-company-vs-montex-corporation-another-on-30-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/good-value-marketing-company-vs-montex-corporation-another-on-30-january-2009","title":{"rendered":"Good Value Marketing Company vs Montex Corporation & Another on 30 January, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Good Value Marketing Company vs Montex Corporation & Another on 30 January, 2009<\/div>\n
Bench: A.S. Oka<\/div>\n
                        ((-1-))\n\n\n\nmst\n\n        IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n             CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                                    \n          CRIMINAL APPLICATION NO.1170 OF 2008\n                           IN\n\n\n\n\n                                            \n          CRIMINAL APPLICATION NO.2081 OF 2008\n                           IN\n             CRIMINAL APPEAL NO.821 OF 2008\n\n                          WITH\n\n\n\n\n                                           \n          CRIMINAL APPLICATION NO.1171 OF 2008\n                           IN\n          CRIMINAL APPLICATION NO.2082 OF 2008\n                           IN\n             CRIMINAL APPEAL NO.824 OF 2008\n\n\n\n\n                                  \n                          WITH\n          CRIMINAL APPLICATION NO.1172 OF 2008\n                     ig    IN\n          CRIMINAL APPLICATION NO.2083 OF 2008\n                           IN\n             CRIMINAL APPEAL NO.825 OF 2008\n                   \n      Good Value Marketing Company\n      Limited and another                    Applicants\n\n               versus\n        \n\n\n      Montex Corporation & another           Respondents\n     \n\n\n\n      Mr.Subhash Jha i\/by M\/s.Law Global for the\n      applicants.\n\n\n\n\n\n      Mr.N.K.Thakore with Prakash Naik for respondent\n      no.1.\n\n      Mr.J.P.Yagnik, APP for the State in Application\n      No.1170 of 2008.\n\n\n\n\n\n      Miss A.J.Javeri, APP for the State in\n      Application No.1171 of 2008.\n\n      Mr.Y.S.Shinde, APP for the State in\n      Application No.1172 of 2008.\n\n\n               CORAM     :   A.S.OKA, J.\n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 14:17:31 :::\n                                   ((-2-))\n\n\n\n                      DATE         :     30th January 2009\n\n    JUDGEMENT :\n<\/pre>\n
    1.      The submissions of the learned counsel for<\/p>\n
    the     parties             have     been heard.        The     facts        of<\/p>\n
    these        three          applications      are       more     or        less<\/p>\n
    similar.             Hence, for the sake of convenience, I<\/p>\n
    am      referring             to     the     facts       in      Criminal<\/p>\n
    Application                No.1170    of 2008.       The       applicants<\/p>\n
    are     the          accused in a complaint filed                    by     the<\/p>\n
    first respondent alleging commission of offence<\/p>\n
    under section 138 of the Negotiable Instruments<\/p>\n
    Act, 1881 (hereinafter referred to as “the said<\/p>\n
    Act         of        1881”).          The    learned          Magistrate<\/p>\n
    acquitted             the applicants in this             application.\n<\/p>\n
    The first respondent filed Criminal Application<\/p>\n
    no.2081          of        2008    in this Court         invoking           sub<\/p>\n
    section          4      of    section      378     of    the     Code        of<\/p>\n
    Criminal             Procedure, 1973 (hereinafter referred<\/p>\n
    to     as        “the        said Code of        1973”).        The        said<\/p>\n
    application                was heard on 28th July 2008.                   This<\/p>\n
    Court        granted          leave and admitted the               appeal.\n<\/p>\n
    This        Court          directed that an action              be        taken<\/p>\n
    under        section          390 of the said Code              of        1973.\n<\/p>\n
    The prayer in this application is for recall of<\/p>\n
    the     said order dated 28th July 2008 and for                               a<\/p>\n
    direction             to     place the application for                 leave<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                               ((-3-))<\/p>\n
    for     re-hearing.               As   the       learned          Judge       who<\/p>\n
    passed       the        order dated 28th July 2008 is                         not<\/p>\n
    available          at     Mumbai, by administrative                        order<\/p>\n
    dated     26th          November 2008, these               applications<\/p>\n
    were     ordered          to be placed before the                      regular<\/p>\n
    Court.\n<\/p>\n
    2.      The       learned           counsel      for      the       applicant<\/p>\n
    submitted          that       a     special         leave         under       sub<\/p>\n
    section       4     of section 378 of the said Code                             of<\/p>\n
    1973     cannot          be       granted        without          giving        an<\/p>\n
    opportunity of being heard to the accused.                                    His<\/p>\n
    submission          is        that grant of leave results                       in<\/p>\n
    admission of the appeal against acquittal which<\/p>\n
    is     invariably         followed          by      an     action          under<\/p>\n
    section       390        of       the said Code           of      1973.         He<\/p>\n
    submitted          that by grant of leave and admission<\/p>\n
    of     an appeal against acquittal, the rights                                  of<\/p>\n
    the      accused              are      vitally           affected            and,<\/p>\n
    therefore,          it was necessary for this Court                             to<\/p>\n
    have     issued a notice to the applicants                               before<\/p>\n
    granting the leave.\n<\/p>\n
    3.      He    submitted              that     the      Apex       Court       has<\/p>\n
    repeatedly held that when an authority takes an<\/p>\n
    action       by     which rights of an                   individual           are<\/p>\n
    affected,          the        principles of         natural            justice<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                                      ((-4-))<\/p>\n
    will         have           to     be     read    in   the         statutory<\/p>\n
    provisions.                 He submitted that the Apex                   Court<\/p>\n
    has     now           held        that the principle          of     natural<\/p>\n
    justice “audi alteram partem” apply even to the<\/p>\n
    administrative                    orders      having          the         civil<\/p>\n
    consequences.                    He placed reliance on decisions<\/p>\n
    of     the           Apex Court in the case of Canara                      Bank<\/p>\n
    vs.          V.K.Awasthy<\/a>                 ([2005]6-SCC-321),            Rajesh<\/p>\n
    Kumar        and          others        vs.      Dy.Cit    and         others<\/p>\n
    ([2007]2-SCC-181                   and the State of           Maharashtra<\/p>\n
    and     others Vs.                Jalgaon Municipal Council                 and<\/p>\n
    others<\/p>\n
                     ([2003]9-SCC-731)               on this aspect.              He<\/p>\n
    submitted             that        as the rule of       “audi         alteram<\/p>\n
    partem”           has        to be read in the         statute           under<\/p>\n
    which            a        quasi     judicial       authority         or       an<\/p>\n
    administrative                    authority       passes        an       order<\/p>\n
    involving             civil consequences, surely the                       said<\/p>\n
    rule     will have to be read in sub section 4                                of<\/p>\n
    section 378 of the said Code of 1973 while this<\/p>\n
    Court        exercises the power of grant of                         special<\/p>\n
    leave.               He     submitted that section 378                 itself<\/p>\n
    makes        a        distinction between a leave which                       is<\/p>\n
    granted in an appeal preferred by the State and<\/p>\n
    a special leave which is required to be granted<\/p>\n
    for     preferring an appeal against the acquittal<\/p>\n
    by a complainant in a private complaint.\n<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span><\/p>\n
                                ((-5-))<\/p>\n
    4.      He invited my attention to the                          provisions<\/p>\n
    of     section 473 of the said Code of 1973                               which<\/p>\n
    confers power on the Court to extend the period<\/p>\n
    of     limitation.            He        submitted that            the      Apex<\/p>\n
    Court     in the case of State of Maharashtra                               vs.<\/p>\n
    Sharadchandra              Vinayak        Dongre         and              others<\/a><\/p>\n
    ([1995]1-SCC-42)             has held that the                  principles<\/p>\n
    of     audi alteram partem will have to be read in<\/p>\n
    the said provision.                He also placed reliance on<\/p>\n
    the     decision of the Apex Court in the case                                of<\/p>\n
    Mangilal vs.           State of M.P.<\/a>            ([2004]2-SCC-447).\n<\/p>\n
    5.      Lastly he submitted that this Court                               could<\/p>\n
    not     have        passed an order directing an                        action<\/p>\n
    under section 390 of the said Code of 1973.                                   He<\/p>\n
    submitted           that     it is not mandatory                  in      every<\/p>\n
    case     where        special        leave or leave               has      been<\/p>\n
    granted        under section 378 of the said Code                             of<\/p>\n
    1973 to direct that an action under section 390<\/p>\n
    of     the said Code of 1973 should be                          initiated.\n<\/p>\n
    He     submitted           that     in the case of              an        appeal<\/p>\n
    against        an     order        of     acquittal       for          offence<\/p>\n
    punishable           under section 138 of the Negotiable<\/p>\n
    Instruments           Act,        1881,    it    is      not         at      all<\/p>\n
    necessary to issue a direction for action under<\/p>\n
    section        390     of     the said Code             of      1973.         He<\/p>\n
    submitted           that     the        result     of        mechanically<\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                               ((-6-))<\/p>\n
    passing       an        order for an action under             section<\/p>\n
    390     of the said Code is that a warrant will be<\/p>\n
    executed       against         the accused who         is     already<\/p>\n
    acquitted          and    in    a   given      case    he     may      be<\/p>\n
    detained       though       the offence for which he                 was<\/p>\n
    prosecuted may be a non cognizable and bailable<\/p>\n
    offence.       He, therefore, submitted that atleast<\/p>\n
    that part of the direction issued by this Court<\/p>\n
    directing          an    action under section 390 of                 the<\/p>\n
    said Code of 1973 be set aside or recalled.\n<\/p>\n
    6.       The       learned\n                              ig    counsel        for     the        first\n\n    respondent          opposed     the prayer       by      submitting\n                            \n    that     once a leave is granted and the appeal is\n\n<\/pre>\n
    admitted, there is no power under the said Code<\/p>\n
    of     1973 vesting in this Court for reviewing or<\/p>\n
    recalling          its    own order.      He    submitted           that<\/p>\n
    even     by exercising the power under section 482<\/p>\n
    of     the said Code, the aforesaid order of                        this<\/p>\n
    Court     granting         leave cannot be recalled.                   He<\/p>\n
    submitted          that an appeal against the acquittal<\/p>\n
    is     available         on law as well as on facts                 and,<\/p>\n
    therefore,          this Court has rightly granted                   the<\/p>\n
    leave.        He submitted that action under section<\/p>\n
    390 of the said Code has already been completed<\/p>\n
    and     the    applicants have furnished                 bail       and,<\/p>\n
    therefore, now it is not necessary to interfere<\/p>\n
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\n                                  ((-7-))<\/p>\n
    with     that part of the order.                  He fairly stated<\/p>\n
    that the first respondent had not prayed for an<\/p>\n
    action       under       section          390 of the        said       Code,<\/p>\n
    however,          this       Court thought it fit               to     issue<\/p>\n
    such     a     direction.             He     submitted          that        no<\/p>\n
    interference is called for.\n<\/p>\n
    7.       I        have             carefully         considered            the<\/p>\n
    submissions.                 The     well     established              legal<\/p>\n
    position          is that as far as an admission of the<\/p>\n
    appeal       is     concerned,            it is always          a     matter<\/p>\n
    between<\/p>\n
                   the Appellate Court and the appellant.\n<\/p>\n
    A     respondent         to        the appeal has no            right       of<\/p>\n
    hearing        at the stage of admission.                      It is only<\/p>\n
    when the Appellate Court thinks it fit to issue<\/p>\n
    a     notice       before          admission or       a     show       cause<\/p>\n
    notice       calling          upon     the respondent            to      show<\/p>\n
    cause     as       to        why    the     appeal    shall          not    be<\/p>\n
    admitted,          the respondent can claim a right                         of<\/p>\n
    being     heard          at the stage of admission of                      the<\/p>\n
    appeal.           Under section 378(1) of the said Code<\/p>\n
    a     Public       Prosecutor can present an appeal                         to<\/p>\n
    the      Court          of     Sessions        from       an    order       of<\/p>\n
    acquittal          passed by a Magistrate in respect of<\/p>\n
    a     cognizable and non-bailable offence.                             Under<\/p>\n
    the     same       sub-section it is provided that                         the<\/p>\n
    State     Government               may in any case          direct         the<\/p>\n
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\n                             ((-8-))<\/p>\n
    public        prosecutor to present an appeal to                    the<\/p>\n
    High     Court from original or appellate order of<\/p>\n
    acquittal        passed     by any Court other than                 the<\/p>\n
    High     Court     (not being an order passed                  on     an<\/p>\n
    appeal preferred against acquittal to the Court<\/p>\n
    of     Sessions)        or order of acquittal passed                  by<\/p>\n
    the Court of Sessions in revision.                    Sub section<\/p>\n
    3    provides      that an appeal to the              High       Court<\/p>\n
    under sub section 1 of section 378 shall not be<\/p>\n
    entertained        except with the leave of the                    High<\/p>\n
    Court.         Sub section 4 provides that if such an<\/p>\n
    order     of<\/p>\n
                     acquittal     is     passed     in        any      case<\/p>\n
    instituted upon a complaint, the complainant is<\/p>\n
    entitled        to apply to the High Court for                   grant<\/p>\n
    of     special     leave to appeal from the order                     of<\/p>\n
    acquittal.        When a public prosecutor desires to<\/p>\n
    appeal against an order of acquittal, he has to<\/p>\n
    apply for grant of leave and when a complainant<\/p>\n
    in     private complaint desires to appeal against<\/p>\n
    an     order     of acquittal, he has to apply for                      a<\/p>\n
    special leave.          Grant of leave or special leave<\/p>\n
    by     this     Court may result in admission of                    the<\/p>\n
    appeal        against     acquittal.    Leave         or     special<\/p>\n
    leave     is granted by this Court after examining<\/p>\n
    the merits of the case.              Leave or special leave<\/p>\n
    is     granted     when     a case is made           out     by      the<\/p>\n
    applicant.         Section     385     of      the      said        Code<\/p>\n
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\n                                 ((-9-))<\/p>\n
    provides         that when an appeal against acquittal<\/p>\n
    is    not dismissed summarily by this Court,                              the<\/p>\n
    Court      is enjoined to cause notice of the                            time<\/p>\n
    and place at which such an appeal will be heard<\/p>\n
    to    be     given          to the accused.             Clause     (a)      of<\/p>\n
    section         386 of the said Code provides that                          in<\/p>\n
    an      appeal         from        order         of    acquittal,         the<\/p>\n
    Appellate         Court may reverse such an order                         and<\/p>\n
    direct that further enquiry be made or that the<\/p>\n
    accused         be retried or committed for trial,                          as<\/p>\n
    the     case      may be, or find him guilty and                         pass<\/p>\n
    sentence<\/p>\n
                     on him according to law.                   Thus,        from<\/p>\n
    the scheme of the provisions of Chapter-XXIX of<\/p>\n
    the     said Code, it appears that after grant                              of<\/p>\n
    leave      or     special leave, if an appeal                      against<\/p>\n
    acquittal         is        not summarily             dismissed,       under<\/p>\n
    section         385        of     the said Code this             Court      is<\/p>\n
    enjoined         to issue notice of the hearing of the<\/p>\n
    appeal       to the accused.               As stated earlier, the<\/p>\n
    law     is      well        settled.           There is no       right      of<\/p>\n
    audience available to a respondent at the stage<\/p>\n
    of    admission of an appeal and the admission of<\/p>\n
    an    appeal          is        always     a     matter    between        the<\/p>\n
    appellant and the Court.                       An order admitting an<\/p>\n
    appeal against the order of acquittal is not an<\/p>\n
    adverse         order        against an accused.                Grant       of<\/p>\n
    leave      or special leave precedes the                        admission<\/p>\n
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\n                                ((-10-))<\/p>\n
    of     an appeal.          If a respondent has no right of<\/p>\n
    audience at the stage of admission of an appeal<\/p>\n
    against        the     order     of acquittal,     it     is     not<\/p>\n
    possible           to say that he has a right of hearing<\/p>\n
    at     the     stage       of grant of    leave    or     special<\/p>\n
    leave.         It     is, therefore, very        difficult         to<\/p>\n
    accept        the     submission of the learned           counsel<\/p>\n
    for     the        applicant     that    the   principles          of<\/p>\n
    natural        justice or principles of audi              alterem<\/p>\n
    partem        will     have to be read in sub section                3<\/span><\/p>\n
    and     sub        section 4 of section 378 of the              said<\/p>\n
    Code<\/p>\n
             of 1973 so as to give right of hearing to<\/p>\n
    a     respondent-accused at the stage of grant                     of<\/p>\n
    leave or at the stage of admission of an appeal<\/p>\n
    against acquittal.\n<\/p>\n
    8.      Reliance placed by the learned counsel for<\/p>\n
    the     applicants          on   the decision of        the     Apex<\/p>\n
    Court        in the case of State of Maharashtra                 vs.<\/p>\n
    Sharadchandra Vinayak Dongre and others<\/a> (supra)<\/p>\n
    will be of no help to the applicants.                   The Apex<\/p>\n
    Court        was     dealing     with    the   power      of     the<\/p>\n
    Criminal           Court    under section 473 of the            said<\/p>\n
    Code of 1973 to extend the period of limitation<\/p>\n
    or     to condone the delay.            Right of hearing           to<\/p>\n
    the opposite party in such a case has been read<\/p>\n
    in     the statute.          The reason is that by            virtue<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                                   ((-11-))<\/p>\n
    of     lapse        or        expiry of period              of      limitation<\/p>\n
    provided        under the said Code of 1973, a                               right<\/p>\n
    is     accrued        in       favour       of        the    accused           and,<\/p>\n
    therefore,          before the delay is condoned and\/or<\/p>\n
    the     period           of    limitation         is        extended,           the<\/p>\n
    accused        is        required to be heard.                      Similarly,<\/p>\n
    the     decision of the Apex Court in the Case                                    of<\/p>\n
    Mangilal (supra) will not help the applicant as<\/p>\n
    the     question           therein was as regards grant                           of<\/p>\n
    compensation             under       section          357 of          the      said<\/p>\n
    Code.\n<\/p>\n
    9.      In     the case of Chandrappa vs.                             State       of<\/p>\n
    Karnataka<\/a> ([2007]4-SCC-415) the Apex Court held<\/p>\n
    that         under            the    said        Code       there        is       no<\/p>\n
    limitation,              obstruction         or             condition             on<\/p>\n
    exercise        of appellate power and the                            Appellate<\/p>\n
    Court     has        full power to review,                    reappreciate<\/p>\n
    and     reconsider             the    evidence upon                 which       the<\/p>\n
    order     of acquittal is founded.                          The       Appellate<\/p>\n
    Court     on evidence before it may reach its                                   own<\/p>\n
    conclusion          both        on law as well as                   on      facts.\n<\/p>\n
    The     Apex        Court,          however, held that                 when       it<\/p>\n
    comes     to Appellate Court interfering with                                   the<\/p>\n
    order     of        acquittal         in         an     appeal           against<\/p>\n
    acquittal,          the Court has to bear in mind                              that<\/p>\n
    the     presumption             of innocence available to                         an<\/p>\n
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\n                                ((-12-))<\/p>\n
    accused        is further strengthened by an order of<\/p>\n
    acquittal.              The Apex Court has also held                   that<\/p>\n
    the Appellate Court has to bear in mind that if<\/p>\n
    two     reasonable conclusions are possible on the<\/p>\n
    basis     of        evidence        on record,        the       Appellate<\/p>\n
    Court     should          not     disturb      the      finding            of<\/p>\n
    acquittal recorded by the Trial Court.\n<\/p>\n
    10.      Thus, the conclusion is that no right                            of<\/p>\n
    hearing        can be read in the said Code in favour<\/p>\n
    of an accused at the stage of grant of leave or<\/p>\n
    special        leave<\/p>\n
                                under    sub     section        3     or      sub<\/p>\n
    section        4        of section 378 of the said Code                    of<\/p>\n
    1973.        No         right    of hearing in favour                of    an<\/p>\n
    accused can be read into the statute while this<\/p>\n
    Court considers the question of admission of an<\/p>\n
    appeal         against          acquittal.       An     accused            is<\/p>\n
    entitled           to     notice only under section 385                   of<\/p>\n
    the     said        Code after this Court comes                  to       the<\/p>\n
    conclusion           that the appeal cannot be summarily<\/p>\n
    dismissed by exercising the power under section<\/p>\n
    384     of     the said Code.           It is needless to                 say<\/p>\n
    that     this           Court    always has a         discretion           of<\/p>\n
    issuing        a        notice before admission or               a     show<\/p>\n
    cause     notice on application for grant of leave<\/p>\n
    or     special          leave wherever this Court                desires<\/p>\n
    that     the        accused should be heard.                In such         a<\/p>\n
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\n                            ((-13-))<\/p>\n
    case     naturally       the accused will get            audience<\/p>\n
    before     grant       of   leave and admission            of     the<\/p>\n
    appeal.         Therefore, the first submission                  made<\/p>\n
    by     the counsel for the applicants will have to<\/p>\n
    be rejected.\n<\/p>\n
    11.     In the present case it is pointed out that<\/p>\n
    an     action     under section 390 of the said                  Code<\/p>\n
    has     been already taken and the applicants have<\/p>\n
    already     furnished bail bonds.           Nevertheless, I<\/p>\n
    am     dealing with the legal submissions made                      by<\/p>\n
    the      counsel
\n                         igappearing     for    the       applicant.\n<\/p>\n
    Section     390     of      the said Code     of      1973       read<\/p>\n
    thus:-\n<\/p>\n
             “S.390. Arrest of accused in appeal from
\n             acquittal.-\n<\/p><\/blockquote>\n
             When an appeal is presented under section<\/p>\n
             378, the High Court may issue a warrant
\n             directing that the accused be arrested
\n             and brought before it or any subordinate
\n             Court, and the Court before which he is
\n             brought may commit him to prison pending<\/p>\n
             the disposal of the appeal or admit him
\n             to bail.”\n<\/p><\/blockquote>\n
    12.      The     section      uses the word        “may”        which<\/p>\n
    indicates       that     this   Court has     a       discretion<\/p>\n
    either to direct an action under section 390 of<\/p>\n
    the     said Code of 1973 or not to direct such an<\/p>\n
    action.         A Division Bench of this Court in the<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                             ((-14-))<\/p>\n
    case     of     A.H.Satranjiwala            vs.       The        State       of<\/p>\n
    Maharashtra           (LXXIV-Bom.L.R.-742)<\/a>                        had        an<\/p>\n
    occasion        to consider the provisions of Section<\/p>\n
    427    of      the Code of Criminal               Procedure,               1898<\/p>\n
    (hereinafter          referred       to as “the old                 Code”).\n<\/p>\n
    The said section reads thus :-\n<\/p>\n
             “When   an appeal is presented      under
\n             section 411A, sub-section (2), or section
\n             417, the Court may      issue a warrant
\n             directing that the accused be arrested
\n             and brought before the Court….”\n<\/p><\/blockquote>\n
    Section<\/p>\n
    section
\n                   427<\/span><\/p>\n
                   390<\/span><\/p>\n
                          of<\/p>\n
                          to
\n                                  the old Code<\/p>\n
                                  the said Code of
\n                                                          is     similar<\/p>\n
                                                                 1973.\n<\/p>\n
                                                                                 to<\/p>\n
                                                                                The<\/p>\n
    Division        Bench held that it is the                      discretion<\/p>\n
    of     the High Court to exercise the power                             under<\/p>\n
    section        427.     This Court held that section 427<\/p>\n
    is     not meant for the protection of the accused<\/p>\n
    but    it      is to ensure that the accused                        against<\/p>\n
    whom     an appeal has been filed may not                           abscond<\/p>\n
    during        pendency       of     the appeal.              This       Court<\/p>\n
    further         observed          that     it        must        be        also<\/p>\n
    appreciated           that        situation          is        altogether<\/p>\n
    different        in     the       course        of     the        original<\/p>\n
    criminal        trial      and during the hearing                     of     an<\/p>\n
    appeal        because during the trial a Court                          would<\/p>\n
    be entitled to examine the accused at any stage<\/p>\n
    of     evidence and his presence might, therefore,<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                                ((-15-))<\/p>\n
    be     required          at     any stage.           Whereas,       in    an<\/p>\n
    appeal,        the        hearing      of      the     appeal         would<\/p>\n
    normally           be proceeded with on the basis of the<\/p>\n
    record.        Thus, what has been held is that it is<\/p>\n
    in     the     discretion of this Court                  to     exercise<\/p>\n
    power        under section 427 of the old Code and it<\/p>\n
    is not necessary that in every case in which an<\/p>\n
    appeal        against         acquittal     is       admitted          that<\/p>\n
    procedure           under       section 427 of the            old      Code<\/p>\n
    should        be        followed.      As held by the           Division<\/p>\n
    Bench,        the        object of section 390 of the                  said<\/p>\n
    Code is to ensure that the accused against whom<\/p>\n
    an appeal has been filed may not abscond during<\/p>\n
    pendency           of     the    appeal.       The     object       is    of<\/p>\n
    ensuring the presence of the accused before the<\/p>\n
    Appellate           Court.        If    this is the           object      of<\/p>\n
    section        390, then it is obvious that the                        word<\/p>\n
    used        “may” in the section cannot be                    construed<\/p>\n
    as     “shall”.          Therefore, in every case in which<\/p>\n
    an     appeal           against acquittal is admitted,                   the<\/p>\n
    action under section 390 will not automatically<\/p>\n
    follow.            The     action      under     section        390      has<\/p>\n
    drastic        consequences.           A warrant is served                on<\/p>\n
    the        accused       who has been          already        acquitted.\n<\/p>\n
    There        are        instances      where     bail     was       either<\/p>\n
    denied to the accused or was belatedly granted.\n<\/p>\n
    As     a     result,          the accused       who     were     already<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                                ((-16-))<\/p>\n
    acquitted remained in custody.\n<\/p>\n
    13.      Therefore,             after admission of an            appeal<\/p>\n
    against        an        order of acquittal it is for                this<\/p>\n
    Court        to exercise the discretion under section<\/p>\n
    390.     The exercise of discretion will depend on<\/p>\n
    the     nature of the offence alleged, the gravity<\/p>\n
    of     the offence and the conduct of the                      accused<\/p>\n
    as reflected from the record of the case.                            Only<\/p>\n
    by     way     of an illustration a reference can                       be<\/p>\n
    made where an appeal against acquittal is filed<\/p>\n
    against        an<\/p>\n
                             order of acquittal of the             accused<\/p>\n
    under section 138 of the said Act of 1881.                            The<\/p>\n
    offence is a bailable offence.                  In a given case<\/p>\n
    where        this Court finds that the accused has                        a<\/p>\n
    fixed        place        of    residence     and    that      he     has<\/p>\n
    regularly           attended       the    Trial Court        and      has<\/p>\n
    co-operated              for trial, it may not necessary to<\/p>\n
    initiate        an        action under section 390             of     the<\/p>\n
    said         Code.             There    are    cases        where         a<\/p>\n
    respondent-accused                 is    represented           by       an<\/p>\n
    advocate        in        an appeal against         acquittal         who<\/p>\n
    after        admission of an appeal waives service of<\/p>\n
    notice        of appeal.          In such a case, it may              not<\/p>\n
    be     necessary           for this Court to pass an                order<\/p>\n
    directing           an     action under section 390 of                the<\/p>\n
    said     Code.            The exercise of       discretion           will<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                                ((-17-))<\/p>\n
    depend on combination of various factors.\n<\/p>\n
    14.      There        is one more aspect of the                matter.\n<\/p>\n
    The     power of this Court to issue warrant under<\/p>\n
    section     390        of the said Code of 1973                is     not<\/p>\n
    confined       to      a    stage        when   appeal         against<\/p>\n
    acquittal        is     admitted.        In a case where             this<\/p>\n
    Court     finds       that the notice is           issued          under<\/p>\n
    section 385 of the said Code and the accused is<\/p>\n
    evading     service          of   notice,       this      Court       can<\/p>\n
    exercise       power        under section 390 of the                 said<\/p>\n
    Code<\/p>\n
             for achieving the object of ensuring that<\/p>\n
    the     accused does not abscond.               In a given case<\/p>\n
    when an appeal against an order of acquittal is<\/p>\n
    placed     for        final hearing and the Court                  finds<\/p>\n
    that     the presence of the accused is necessary,<\/p>\n
    even at that stage also this Court can exercise<\/p>\n
    the power under section 390 of the said Code of<\/p>\n
    1973.     Thus, the power under section 390 of the<\/p>\n
    said Code of 1973 can be exercised at any stage<\/p>\n
    during     the        pendency      of     an    appeal        against<\/p>\n
    acquittal.\n<\/p>\n
    15.      The     learned counsel for             the      applicants<\/p>\n
    submitted        that       on the basis of        action          under<\/p>\n
    section     390, there are cases where an                      accused<\/p>\n
    who     is acquitted is put behind the bars as                          he<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                            ((-18-))<\/p>\n
    is      not     enlarged         on   bail.      Section         390<\/p>\n
    contemplates          that       when action is taken         under<\/p>\n
    section       390,     the accused can be arrested               and<\/p>\n
    brought       before       this Court or any        subordinate<\/p>\n
    Court.        The section further provides that                  the<\/p>\n
    Court before which he is brought may commit him<\/p>\n
    to prison pending the disposal of the appeal or<\/p>\n
    admit     him to bail.            Thus, when pursuant to           an<\/p>\n
    action     under section 390 of the said Code,                     an<\/p>\n
    accused       is brought before a subordinate Court,<\/p>\n
    the     said Court has ample power to enlarge                    the<\/p>\n
    accused       on<\/p>\n
                         bail.        On plain    reading     of     the<\/p>\n
    section       it is obvious that the concerned Court<\/p>\n
    subordinate          to this Court need not be under an<\/p>\n
    impression          that     merely    because an      order       is<\/p>\n
    passed     by       this Court of issuing warrant,               the<\/p>\n
    accused       should not be admitted to bail and                   he<\/p>\n
    should be taken in custody.               The said Court has<\/p>\n
    a     power to admit the accused to bail.                 When an<\/p>\n
    accused       is brought before a Court             subordinate<\/p>\n
    to     this Court on the basis of an action                   under<\/p>\n
    section       390     of     the said case,      normally        the<\/p>\n
    accused       should be enlarged on appropriate bail<\/p>\n
    unless there are extraordinary circumstances or<\/p>\n
    unless     there       is a direction of this Court                to<\/p>\n
    that     effect.           The    subordinate   Court       before<\/p>\n
    which     the accused is produced must keep it                     in<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                                      ((-19-))<\/p>\n
    mind     that           the accused produced before                     it     is<\/p>\n
    already acquitted.\n<\/p>\n
    16.      At        this           stage it will be        necessary            to<\/p>\n
    refer        to        a decision of Division Bench in                       the<\/p>\n
    case     of        Prema           Bangar    Swamy      vs.        State       of<\/p>\n
    Maharashtra and others<\/a> (2004-Cri.L.J.-1296).                                     I<\/p>\n
    find that the certain important directions have<\/p>\n
    been     given by the Division Bench of this Court<\/p>\n
    on this aspect which are not at all implemented<\/p>\n
    by     the        registry.            The     said     directions           are<\/p>\n
    consistent              with
\n                                  ig   the object of the section                   to<\/p>\n
    ensure        that the accused does not abscond.                               In<\/p>\n
    paragraph              25        of the said decision this                Court<\/p>\n
    observed           that          when pursuant to        action           under<\/p>\n
    section           390        of the said Code, an              accused         is<\/p>\n
    arrested               and         brought      before         the        Court<\/p>\n
    subordinate to this Court, it is quite possible<\/p>\n
    that     out           of        lack of     adequate     knowledge            or<\/p>\n
    financial              difficulties or various reasons that<\/p>\n
    inspite           of        an     acquittal    in      his      favour        an<\/p>\n
    accused           may not apply for bail.                The        Division<\/p>\n
    Bench        directed that in all such matters                            where<\/p>\n
    the     accused is produced before the subordinate<\/p>\n
    Court        after           his arrest, the          Judge        concerned<\/p>\n
    ought to inform the accused that he has a right<\/p>\n
    to apply for the bail and thereafter it will be<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                             ((-20-))<\/p>\n
    for     the     accused         to      make       the        appropriate<\/p>\n
    application.           In the said decision this                      Court<\/p>\n
    noted     the        practice constantly             followed            that<\/p>\n
    after     action       is ordered under section 390                        of<\/p>\n
    the     said     Code        by this Court,          the        concerned<\/p>\n
    Subordinate          Court issues communication to this<\/p>\n
    Court     recording as to whether the accused                             has<\/p>\n
    been granted bail or the same has been refused.\n<\/p>\n
    The     Division       Bench directed that in all                        such<\/p>\n
    matters it would be desirable that the registry<\/p>\n
    places        papers       of the concerned appeal                  before<\/p>\n
    the      appropriate
\n                            ig      Court         immediately                after<\/p>\n
    receiving        the       communication with a note                     that<\/p>\n
    after     the        arrest of the accused he                   has       been<\/p>\n
    taken     into custody.              The Division Bench               noted<\/p>\n
    that     in     a     case      where        the    accused         is     not<\/p>\n
    enlarged        on     bail,         there    will       be     one       more<\/p>\n
    opportunity          to see that unnecessary                   detaining<\/p>\n
    the     accused in custody inspite of acquittal by<\/p>\n
    the     Trial        Court      is avoided         and        the     person<\/p>\n
    concerned        can       be    released on         a        bond.        The<\/p>\n
    Division        Bench observed that the aforesaid two<\/p>\n
    directions          will     take       care of      the        situation<\/p>\n
    which     had        arisen      in      the       case       before       the<\/p>\n
    Division        Bench.          The     relevant         part       of     the<\/p>\n
    decision of paragraph 25 reads thus :-\n<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span><\/p>\n
                ((-21-))<\/p>\n
     “25. … … Now as the Section reads,
\n     in an appeal from acquittal when an
\n     accused is arrested and brought before
\n     the subordinate Court it is for the<\/p>\n
     accused to apply for bail. It is quite
\n     possible that out of lack of adequate
\n     knowledge or financial difficulties or<\/p>\n
     various reasons that in spite of an
\n     acquittal in his favour an accused may
\n     not apply for bail. Some such thing
\n     appears to have happened in the present
\n     case.   In our view in all such matters<\/p>\n
     where an accused is produced before the
\n     subordinate Court after his rearrest the
\n     Judge concerned ought to inform      the
\n     accused that he has a right to apply for
\n     bail.   Thereafter it will be for the<\/p>\n
     accused   to    make   the   appropriate
\n     application.\n<\/p>\n
     application<\/p>\n
     (ii) We are told that the consequence of
\n     any such bail application or even non
\n     presentation thereof is reported by the
\n     Judge    concerned to    the High    Court<\/p>\n
     subsequently.    Thus   the communication
\n     reaches the High Court as to whether the
\n     accused has been granted bail or the same
\n     has been refused. In our view, once such
\n     communication    is received    from   the
\n     subordinate Court the Administration of<\/p>\n
     the High Court must find out as to
\n     whether the accused has been granted bail<\/p>\n
     or has been denied it and whether he is
\n     continued    in custody.    In all    such
\n     matters it would be desirable that the
\n     High Court Administration      places the
\n     paper of the concerned appeal before the<\/p>\n
     appropriate Court with a note that after
\n     the arrest of the accused subsequent to
\n     the admission of the appeal against the
\n     acquittal, accused has been taken in
\n     custody.    On noting this development it
\n     will   be    for   the   concerned   Court<\/p>\n
     thereafter to pass appropriate order.
\n     that will be one more opportunity to see
\n     to it that unnecessary retaining the
\n     accused in custody in spite of acquittal
\n     by the trial Court is avoided and the
\n     person concerned can be released on a
\n     bond.”\n<\/p>\n
     bond   (Emphasis added)<\/p>\n
                                  ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                             ((-22-))<\/p>\n
    17.      It     is unfortunate that the                 Registry         of<\/p>\n
    this     Court       has     not     implemented         the       second<\/p>\n
    direction        issued by this Court of placing                       the<\/p>\n
    appeals        against      acquittal           after      report        is<\/p>\n
    received        from       the Trial Court as regards                  the<\/p>\n
    action under section 390 of the Code.                         Even the<\/p>\n
    first        direction      issued     to       the      Subordinate<\/p>\n
    Courts to bring it to the notice of the accused<\/p>\n
    of     his     right to apply for bail is                  not      being<\/p>\n
    implemented.\n<\/p>\n
    18.      Now<\/p>\n
                     coming back to the present case,                        as<\/p>\n
    stated earlier, the order under section 390 has<\/p>\n
    already been implemented.\n<\/p>\n
    19.      In     the circumstances, no relief                    can      be<\/p>\n
    granted          to        the        applicants           in       these<\/p>\n
    applications.              Therefore,       I     pass       following<\/p>\n
    order:-\n<\/p>\n
    (a) The applications are rejected;\n<\/p>\n
    (b)     The Registrar (Judicial-I) is directed                           to<\/p>\n
    ensure        that     second direction issued                by      this<\/p>\n
    Court        in paragraph 25 of the judgement in                       the<\/p>\n
    case     of     Prema       Bangar     Swamy      vs.        State       of<\/p>\n
    Maharashtra<\/a>            ([2004]-      Cri.L.J.-             1296)         is<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                         ((-23-))<\/p>\n
    implemented;\n<\/p>\n
    (c) The Registrar (Judicial-I) will circulate a<\/p>\n
    copy of the said decision of the Division Bench<\/p>\n
    as    well    as   this order to   all   the    Criminal<\/p>\n
    Courts subordinate to this Court to ensure that<\/p>\n
    the    said    Courts scrupulously comply with           the<\/p>\n
    directions issued by the Division Bench of this<\/p>\n
    Court in paragraph 25 of the said decision;\n<\/p>\n
    (d)    A copy of this order shall be forwarded to<\/p>\n
    the Registrar (Judicial-I) of this Court.\n<\/p>\n
                                   (A.S.OKA, J.)<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>
\n                           ((-24-))<\/p>\n
         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
\n              CRIMINAL APPELLATE JURISDICTION<\/p>\n
             CRIMINAL APPEAL NO.821 OF 2008<\/p>\n
                          WITH
\n             CRIMINAL APPEAL NO.824 OF 2008
\n                          WITH<\/p>\n
             CRIMINAL APPEAL NO.825 OF 2008<\/p>\n
    Good Value Marketing Company
\n    Limited and another                         Appellants<\/p>\n
                 versus<\/p>\n
    Montex Corporation & another                     Respondents<\/p>\n
    Mr.Subhash Jha        i\/by    M\/s.Law    Global         for    the
\n    appellants.\n<\/p>\n
    Mr.N.K.Thakore with Ganesh Bhujbal, Pavan Mali
\n    i\/by Prakash Naik for respondent no.1.\n<\/p>\n
    Mr.J.P.Yagnik, APP           for    the State      in     Appeal
\n    No.821 of 2008.\n<\/p>\n
    Miss A.J.Javeri,           APP for the State in           Appeal
\n    No.824 of 2008.\n<\/p>\n
    Mr.Y.S.Shinde, APp           for    the State      in     Appeal
\n    No.825 of 2008.\n<\/p>\n
                 CORAM     :   A.S.OKA, J.\n\n                 DATE      :    30th January 2009\n\n\n\n\n\n    PC :\n\n\n    1.     The   learned       counsel for    the      appellants\n\n\n\n\n\n    prayed    that      he be permitted to      file        private\n\n    paper book.      Liberty is granted to file private\n\n    paper book.\n\n\n\n                                       (A.S.OKA, J.)\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:17:31 :::<\/span>\n            ((-25-))\n\n\n\n\n                                              \n                      \n                     \n                     \n       \n      \n      \n   \n\n\n\n\n\n\n                      ::: Downloaded on - 09\/06\/2013 14:17:31 :::<\/span>\n                        ((-26-))\n\n\n\n\n<\/pre>\n
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
\n           CRIMINAL APPELLATE JURISDICTION<\/p>\n
         CRIMINAL APPLICATION NO.1170 OF 2008
\n                          IN
\n         CRIMINAL APPLICATION NO.2081 OF 2008<\/p>\n
                          IN
\n            CRIMINAL APPEAL NO.821 OF 2008<\/p>\n
                         WITH
\n         CRIMINAL APPLICATION NO.1171 OF 2008<\/p>\n
                          IN
\n         CRIMINAL APPLICATION NO.2082 OF 2008
\n                          IN
\n            CRIMINAL APPEAL NO.824 OF 2008<\/p>\n
                         WITH
\n         CRIMINAL APPLICATION NO.1172 OF 2008
\n                          IN<\/p>\n
         CRIMINAL APPLICATION NO.2083 OF 2008
\n                          IN
\n            CRIMINAL APPEAL NO.825 OF 2008<\/p>\n
    Good Value Marketing Company
\n    Limited and another                          Applicants<\/p>\n
              versus<\/p>\n
    Montex Corporation & another                 Respondents<\/p>\n
    Mr.Subhash Jha     i\/by   M\/s.Law     Global       for     the
\n    applicants.\n<\/p>\n
    Mr.N.K.Thakore with Prakash Naik for respondent<\/p>\n
    no.1.\n<\/p>\n
    Mr.J.P.Yagnik, APP for the State in Application
\n    No.1170 of 2008.\n<\/p>\n
    Miss   A.J.Javeri,  APP   for         the      State         in<\/p>\n
    Application No.1171 of 2008.\n<\/p>\n
    Mr.Y.S.Shinde,   APP    for         the       State          in
\n    Application No.1172 of 2008.\n<\/p>\n
              CORAM     :   A.S.OKA, J.\n\n              DATE      :   30th January 2009\n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 14:17:31 :::<\/span>\n                             ((-27-))\n\n\n\n\n    JUDGEMENT :\n\n\n    1.       For     the     reasons    separately        recorded,\n\n\n\n\n                                                                             \n    following order is passed :-\n\n\n\n\n                                                     \n<\/pre>\n
    (a) The applications are rejected;\n<\/p>\n
    (b)     The Registrar (Judicial-I) is directed                    to<\/p>\n
    ensure        that   second direction issued           by      this<\/p>\n
    Court     in paragraph 25 of the judgement in                   the<\/p>\n
    case     of     Prema    Bangar    Swamy   vs.        State       of<\/p>\n
    Maharashtra<\/a><\/p>\n
                            ([2004]-Cri.L.J.-1296)                  are<\/p>\n
    implemented;\n<\/p>\n
    (c) The Registrar (Judicial-I) will circulate a<\/p>\n
    copy of the said decision of the Division Bench<\/p>\n
    as     well     as   this order to     all   the       Criminal<\/p>\n
    Courts subordinate to this Court to ensure that<\/p>\n
    the     said     Courts scrupulously comply with                the<\/p>\n
    directions issued by the Division Bench of this<\/p>\n
    Court in paragraph 25 of the said decision;\n<\/p>\n
    (d)     A copy of this order shall be forwarded to<\/p>\n
    the Registrar (Judicial-I) of this Court.\n<\/p>\n
                                        (A.S.OKA, J.)<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:17:31 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Good Value Marketing Company vs Montex Corporation & Another on 30 January, 2009 Bench: A.S. Oka ((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1170 OF 2008 IN CRIMINAL APPLICATION NO.2081 OF 2008 IN CRIMINAL APPEAL NO.821 OF 2008 WITH CRIMINAL APPLICATION NO.1171 OF 2008 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-241407","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nGood Value Marketing Company vs Montex Corporation & Another on 30 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/good-value-marketing-company-vs-montex-corporation-another-on-30-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Good Value Marketing Company vs Montex Corporation & Another on 30 January, 2009 - 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