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2000 DIGILAW 115 (AP)

C. Nageswara Rao v. State Of A. P.

2000-02-18

VAMAN RAO

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VAMAN RAO, J. ( 1 ) THIS petition under Section 482 of Cr. P. C. seeks quashing of the orders of the IV Additional Metropolitan Sessions Judge, Hyderabad dated 15-2-2000 passed in Crl. M. P. No. 86 of 2000 in Cri. Appeal No. 13 of 2000 under which the learned Additional Metropolitan Sessions Judge dismissed the petitioner-accused s petition for suspending the sentence. ( 2 ) IT appears that the petitioner was prosecuted for the offence under Section 138 of the Negotiable Instruments Act under which he was convicted and sentenced to pay a fine of Rs. 5,000. 00 and to undergo rigorous imprisonment for a period of two months. It is not disputed that the petitioner had deposited the fine imposed. ( 3 ) THE learned counsel for the petitioner contends that normally in an appeal against conviction, the substantive sentence of imprisonment is suspended during the pendency of the appeal and for no reason the learned Additional Metropolitan Sessions Judge in this case has refused to suspend the sentence. ( 4 ) THE learned Public Prosecutor also concedes that the learned Sessions Judge has failed to give any special reasons for refusing to suspend the sentence. ( 5 ) SECTION 389 of Cr. P. C. provides that pending an appeal by a convicted person, the appellate Court may for the reasons 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. It is true that it is within the discretion of the appellate Court to suspend the execution of the sentence but the language of Section 389 (1) of Cr. P. C. does not support the contention of the petitioner that whenever an appeal is filed against conviction and sentence, the sentence of imprisonment must invariably be suspended. ( 6 ) SECTION 389 (1) of Cr. P. C. contemplates that when the appellate Court exercises its discretion to suspend the sentence, it is required to record in writing its reasons for exercising such discretion. On the other hand, the provision does not contemplate recording of reasons for refusing to suspend the sentence. However, this does not mean that the appellate Court to which an appeal against conviction and sentence has been preferred can exercise its discretion arbitrarily. On the other hand, the provision does not contemplate recording of reasons for refusing to suspend the sentence. However, this does not mean that the appellate Court to which an appeal against conviction and sentence has been preferred can exercise its discretion arbitrarily. Such discretion has to be exercised fairly and reasonably with reference to facts and circumstances of the case, the nature of the offence, the quantum of sentence imposed, the fact whether the accused was on bail during the trial and the probability of securing the presence of the convicted accused for undergoing the sentence in case appeal is dismissed and other relevant circumstances. ( 7 ) IN this case, the impugned order of the learned Sessions Judge merely mentions that "the petitioner failed to satisfy this Court by showing any cogent reasons to suspend the execution of sentence imposed by the trial Court". Another circumstance which seems to have weighed with the learned Sessions Judge is that it was not mentioned in the petition whether the trial Court had suspended the sentence or not. Even if this fact is not mentioned, this could have been ascertained. At any rate, this could not have been a reason for refusing to suspend the sentence if otherwise the circumstances justified suspending the sentence. ( 8 ) IN this case, the offence for which the petitioner has been convicted is under Section 138 of the Negotiable Instruments Act for which the maximum punishment provided in one year. The trial Court has imposed a sentence of imprisonment of only two months against the petitioner. The petitioner is said to have been on bail during the trial and at the time of passing of the judgment. Though the learned Sessions Judge has mentioned that it is not known whether the trial Court has suspended the sentence, it is now stated and is not controverted that the sentence was suspended by the trial Court under the provisions of Section 389 (3) of Cr. P. C. These circumstances seem to have been ignored by the learned Sessions Judge while refusing to suspend the sentence. ( 9 ) IT may be mentioned that in this case, the sentence of imprisonment being for a period of only two months, it is likely that by the time the appeal would be heard, the petitioner would serve out the whole or substantial part of sentence imposed upon him. ( 9 ) IT may be mentioned that in this case, the sentence of imprisonment being for a period of only two months, it is likely that by the time the appeal would be heard, the petitioner would serve out the whole or substantial part of sentence imposed upon him. This is yet another valid consideration for suspending the sentence by the appellate Court pending hearing of the appeal. It may be observed that if the sentence is not suspended, the very purpose of filing the appeal considering the short period of sentence may be defeated. Under Section 389 (2) of Cr. P. C. , 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. Under these circumstances, the order refusing to suspend the sentence deserves to be quashed. ( 10 ) IN the result, this petition is allowed and the order of the learned Additional Metropolitan Sessions Judge, Hyderabad passed in Crl. M. P. No. 86 of 2000 is quashed and it is directed that the sentence of imprisonment imposed against the petitioner-accused in C. C. No. 291 of 1997 on the file of the IV Metropolitan Magistrate, Hyderabad shall stand suspended on his executing a person bond in a sum of Rs. 2,000. 00 (Rupees two thousands only) with one surety for the like sum to the satisfaction of the IV Metropolitan Magistrate, Hyderabad. If the petitioner is already arrested for undergoing the sentence, he shall be released on bail on the above terms. Petition allowed.