Farid Veljee v. Nurallah Kamruddin Veljee (Presently in Custody at Covale Central Jail, Colvale) and Anr

O R D E R a. Criminal Writ Petition No. 31/2022 is partly allowed. b. The impugned order dated 05.03.2022 in Criminal Revision Application No. 40/2019 is hereby quashed and set aside. c. Similarly, the modification of the sentence awarded by the learned Additional Sessions Judge in Criminal Appeal No. 60/2019 is quashed and set aside. d. The learned Additional Sessions Judge is directed to decide Criminal Revision Application No. 40/2019 on its own merits, together with the sentence to be awarded in Criminal Appeal No. 60/2019 since the decision in Criminal Revision Application No. 40/2019 will have a direct bearing on the sentence part. e. It is made clear that this Court has not decided the present Petition filed by the Petitioner/ Complainant as well as the Revision filed by the Accused/Respondent No. 1, on merits. f. The right of the Accused to challenge the order passed by the learned Additional Sessions Judge with regard to the findings on merits in Criminal Appeal No. 60/2019, together with the findings with regard to the sentence along with the decision in Criminal Revision Application No. 40/2019 stands protected. g. The Accused shall be entitled to file proceedings against such combined orders including the findings rendered by the first Appellate Court in Criminal Appeal No. 60/2019 thereby confirming the sentence. h. Criminal Revision Application No. 40/2019 is restored to the file of the learned Additional Sessions Judge, Panaji with a direction to decide it on its own merits, within a period of three months from the date of receipt of a copy of this order. i. The learned Counsel for the parties undertake to cooperate with the Additional Sessions Judge in adhering to the time limit fixed by this Court. j. Criminal Revision Application No. 12/2022 filed by the Petitioner/Complainant and Criminal Revision Application Nos. 398/2022 (F) filed by the Accused/Respondent No. 1 stand disposed of, at present, with liberty to the concerned parties to approach this Court in case any adverse orders are passed, including the findings of the learned Additional Sessions Judge in Criminal Appeal No. 60/2019. k. It is made clear that the parties are not allowed to argue the matter afresh before the learned Additional Sessions Judge insofar as the observations on merits and the decision in Criminal Appeal No. 60/2019 are concerned. Liberty is granted only to argue the matter regarding inadequate sentence along with the Revision filed by the Complainant/Petitioner. l. The parties shall appear before the learned Additional Sessions Judge, Panaji on 03.05.2024 at 2:30 p.m. and place a copy of the order of this Court before the learned Additional Sessions Judge. m. Registry to immediately send the R & P to the learned Additional Sessions Judge.

¶21Rule is made absolute in above terms.

¶22Accordingly, Criminal Writ Petition No. 31/2022 and Criminal Revision Application No. 12/2022 filed by the Petitioner/Complainant and Criminal Revision Application No. 398 of 2022 (F) filed by the Accused/Respondent No. 1 stand disposed of in the above terms.

¶23Pending Criminal Miscellaneous Application No. 399 of 2022 (F) also stands disposed of.

BHARAT P. DESHPANDE, J. ESHA SAINATH VAIGANKAR Date: 2024.04.26 17:32:36 +05'30'

Esha IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 31 OF 2022 WITH CRIMINAL REVISION APPLICATION NO. 12 OF 2022 Mr. Farid Veljee, son of Fatehali Habib Veljee, age 54 years, married, businessman, Indian National, Resident of A/4, Karimabad Co-op. Housing Society Ltd., Campal, Panaji-Goa. … Petitioner Versus 1. Mr. Nurallah Kamruddin Veljee, major, married, businessman, Indian National, Resident of 701, "C" Wing, Rizvi Tower, St.Inez, Panaji, Goa and having office at C/o Space Deal, Near Head Post Office, M.G. Road, Panaji, Goa (Presently in custody at Colvale Central Jail, Colvale, Bardez, Goa). 2. State of Goa, Through its Public Prosecutor. … Respondents WITH CRIMINAL REVISION APPLICATION NO. 398 OF 2022 (F) CRIMINAL MISC. APPLICATION NO. 399 OF 2022 (F) IN CRIMINAL REVISION APPLICATION NO. 398 OF 2022 (F) Mr. Nurallah Kamruddin Veljee, major, married, aged 62 years, married, businessman, Indian National, 701 "C" Wing, Rizvi Tower, St.Inez, Panaji, Goa, C/o Space Deal, Near Head Post Office, M.G. Road, Panaji, Goa. … Applicant Versus 1. Mr. Farid Veljee, major, married, businessman, Indian National, R/at A/4, Karimabad Co-op. Housing Society Ltd., Campal, Panaji-Goa. 2. The Public Prosecutor, High Court of Bombay at Goa, High Court Building, Panaji, Goa. … Respondents ***** Mr. Abhay Nachinolkar, Advocate for the Petitioner/ Applicant/Complainant in WPCR No. 31/2022 and CRIR No. 12/2022. Mr. Rohan Desai, Advocate for the Applicant/Respondent No. 1/Accused in CRIR No. 398/2022 (F) and CRMA No. 399/2022 (F). Mr. Somnath Karpe, Additional Public Prosecutor for the State/Respondent No. 2 in all matters. CORAM: BHARAT P. DESHPANDE, J. DATED: 25th APRIL 2024 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard finally with the consent of parties. 2. Criminal Writ Petition No. 31/2022 is filed challenging the order dated 05.03.2022 passed by the Additional Sessions Judge, Panaji in Criminal Revision Application No. 40/2019 filed by the Petitioner/Complainant thereby challenging the inadequate sentence and compensation passed by the Trial Court. Such Revision was filed by the Petitioner/Complainant under Section 397 of Cr.P.C. on the premise that there is no Appeal available to the Petitioner/Complainant challenging only inadequate sentence though convicted by the learned Magistrate. 3. Mr. Nachinolkar appearing for the Petitioner/Complainant would submit that the learned Additional Sessions Judge rejected such Revision only on technical ground i.e. availability of Appeal for the Petitioner. He submits that the Complainant under Section 138 of the N.I. Act cannot be equated with a Victim as tried to be projected by the learned Additional Sessions Judge so as to allow such Victim to file an Appeal under Section 372 proviso of Cr.P.C. Mr. Nachinolkar placed reliance on the decision of the Division Bench of this Court in the case of Kushal Kawaduji Singanjude Vs. Ramnarayan Durgaprasad Agrawal, 2020 (1) Mh.L.J. 748. 4. Mr. Desai appearing for Respondent No. 1/Accused would submit that Respondent No. 1 preferred a Revision before this Court bearing Criminal Revision Application No. 398/2022 (F) thereby challenging the concurrent findings of the Courts below. He submits that since the Revision is pending before this Court, it would be conflicting, if Criminal Writ Petition No. 31/2022 filed by the Petitioner/Complainant is considered. However, Mr. Desai appearing for Respondent No. 1/Accused fairly submitted that in view of the observations of the Division Bench of this Court in Kushal Singanjude (supra), the Complainant under Section 138 of the N.I. Act cannot be equated with a Victim and accordingly, the Appeal against inadequate sentence is not applicable. 5. Mr. Nachinolkar appearing for the Petitioner/Complainant submits that the Petitioner has filed a separate Criminal Revision Application No. 12/2022 thereby challenging the inadequate sentence passed by the Courts below. 6. Accordingly, both these proceedi