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Madhya Pradesh High Court · body

2007 DIGILAW 478 (MP)

Hariom Vani v. Munnalal

2007-04-25

S.C.VYAS

body2007
ORDER 1. Heard finally with the consent of both the parties. This is a petition filed under section 482 of CrPC, for quashment of an order passed by Additional Sessions Judge, Kukshi, District Dhar in Criminal Appeal No. 58/2007 on 20.3.2007, whereby while allowing the application filed under section 389 (1) of CrPC, for suspension of sentence, a condition was imposed that sentence would be suspended only after depositing the amount of fine. The grievance of the present petitioner is only against imposition of such condition. 2. Learned counsel for petitioner submitted that present petitioner has been found guilty by the trial Court for the offence punishable under section 138 of Negotiable Instrument Act and has been sentenced with rigorous imprisonment for one year and to pay a fine of Rs. 6,00,000/- (Rs. six lacs). It has further been ordered that the petitioner would have to undergo RI for three months in default of payment of fine amount. This judgment of conviction and order of sentence has been challenged by the present petitioner before Additional Sessions Judge, Kukshi along with an application for suspension of sentence. This application was allowed, but while allowing that application learned Additional Sessions Judge unnecessary and illegally imposed a very harsh condition for suspension of sentence and ordered that amount of fine should be deposited first. 3. Learned counsel for the petitioner further submitted that the condition imposed by learned Additional Sessions Judge, while passing the order of suspension of sentence is not according to the public policy and he was having full power to suspend the whole of the sentence imposed by the trial Court against the present petitioner, including the sentence of fine. Learned counsel further submitted that sentence of fine should also have been suspended by the appellate Court and by not suspending that part of the sentence illegality has been committed by the appellate Court. 4. Learned counsel for the petitioner placed full reliance on section 389 Sub Clause 1 of CrPC, and submitted that under this provision appellate Court enjoys the power of suspension of sentence which is not limited to suspending sentence of jail only. He submitted that it includes power of suspension of sentence of fine also and any order which is passed against which the appeal has been filed. 5. He submitted that it includes power of suspension of sentence of fine also and any order which is passed against which the appeal has been filed. 5. He placed reliance on the judgment of Supreme Court delivered in the case of Sandeep Jain v. National Capital Territory of Delhi [ AIR 2000 SC 714 ] and submitted that in that case a condition was imposed of payment of Rs. 2,00,000/- before releasing the applicant of that case on bail and that condition was found much harsh. He submitted that same is the condition in the present applicant. The present petitioner is not in a position to deposit the huge amount of Rs. 6,00,000/- and because he could not deposit this much amount, therefore, in spite of order of suspension of sentence rendered by Additional Sessions Judge in his favour, he is forced to remain in jail, which is contrary to law. 6. Learned counsel for the petitioner further relied on the judgment of this High Court passed by a Single Bench in the matter of Brijesh Kumar Sharma v. Ramprakash Kulshrestha [ 2007 (1) MPWN 109 ] wherein it has been held that under the provisions of section 389 (1) and (3) of CrPC, appellate Court can very well suspend the sentence of fine also. 7. There cannot be any quarrel with the preposition that the appellate Court enjoys the power of suspending the order of payment of fine also. Because, one is required to undergo jail sentence in default of payment of fine. But it is difficult to agree with the arguments raised by learned counsel for the applicant that appellate Court does not have any power to impose any condition before passing any order of suspending of sentence and releasing applicant on bail. In this regard as argued by learned counsel for the respondent judgment rendered by Supreme Court in the case of Stanny Felix Pinto v. Jangid Builders Pvt. Ltd. and another reported in [ (2001) 2 SCC 416 ] can usefully be referred. In that case also the appellant was sentenced for the offence punishable under section 138 of the Negotiable Instrument Act and while passing an order of suspension of sentence High Court imposed condition that part of the fine amount shall be remitted in the Court within specified period. In that case also the appellant was sentenced for the offence punishable under section 138 of the Negotiable Instrument Act and while passing an order of suspension of sentence High Court imposed condition that part of the fine amount shall be remitted in the Court within specified period. It was also observed by Supreme Court in this case that "we feel that while suspending the sentence for the offence under section 138 of Negotiable Instruments Act it is advisable that the Court imposes a condition that the fine part is remitted within a certain period. If the fine amount is heavy, the Court can direct at least a portion thereof to be remitted as the convicted person wants the sentence to be· suspended during the pendency of the appeal." 8. The law laid down by the Supreme Court in the aforesaid case clearly shows that condition of payment of some amount of fine can always be imposed, but if the amount of fine is very heavy, then of course looking to the nature of the offence, the amount of fine and period of jail sentence coupled with the fine, are all required to be taken into consideration. 9. In the facts of the present case as stated by learned counsel for the petitioner the cheque amount was of Rs. 3,00,000/- and as usual the trial Court has imposed the fine double the cheque amount, therefore, the condition of depositing the entire amount of fine before releasing the petitioner on bail suspending his sentence appears to be very much harsh and is unsustainable. 10. Therefore, in the facts of the present case, it appears reasonable that facility be provided to the present petitioner to deposit the cheque amount, in few installments so that he can be released on bail suspending his sentence and the amount of cheque can also be deposited in the account of the Court which may very well be kept there during the pendency of trial and can be ultimately disbursed to a person who would be ultimately found rightful claimant of that amount. 11. Considering all the aspects of the matter, the petition succeeds in part and is allowed. 11. Considering all the aspects of the matter, the petition succeeds in part and is allowed. The condition of depositing the amount of fine before suspending the sentence and release the petitioner on bail, as imposed by the appellate Court is hereby quashed and it is ordered that present petitioner will be having liberty to deposit 50% of the fine amount equivalent to the amount of cheque i.e. Rs. 3,00,000/- (Rs. three lakhs) in the trial Court in three installments at the interval of two months. First installment would be deposited in month of May, 2007. In case of failure in depositing the amount of fine by the present petitioner as directed above, trial Court would be free to reconsider the order of suspension of sentence.