Conviction u/s 138 n.i. act, condonation prayer, order u/s 389(1) cr.p.c - whether maintainable?

SANTANU SAHA (Querist) 13 December 2016 This query is : Resolved
Sir,

My client had been convicted U/s 138 Of the Negotiable Instruments Act, 1881 in the month of June 2016 with S.I. for 4months & fine of 6.5L.

After conviction, the Trial Magistrate upon an application made to that effect, released him on bail U/s 389(3)(1) Cr.P.C and the sentence remained suspended during the appeal limitation period of 30 days. However, my client could not file an appeal within the limitation period as he suffered an accident. Consequently, Arrest Warrant was issued and my client got arrested.

Presently, I have filed a Crl. Appeal, a Crl. Misc. Case for Condonation of delay U/s 5 of the Limitation Act, 1963 & also a Crl. Misc. Case for an order U/s 389(1) Cr.P.C for suspending the sentence and releasing the accused on bail.

The Crl. Misc. Case for condonation has been admitted and notice has been issued to the respondents and the same has been fixed for reply by respondents. However, the Session Judge has refused to pass any order on the Crl.Misc.Case U/s 389(1).

Sir, my question is can a pending Misc.Case for Condonation of delay be treated as pending Appeal? Can you please suggest any legal provision or S.C. judgment where an order U/s 389(1) may be passed pending disposal of the Condonation Misc. Case?

Sir, if an order U/s 389(1) is not passed and there is an inordinate delay in disposal of the Misc. Case U/s 5 of the Limitation Act, the matter would become infructous as the accused would have already served most part of the sentence of simple imprisonment by then.

Please reply me urgently,

Thanking you in advance.

Santanu Saha,
Advocate.

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