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2008 DIGILAW 1045 (MP)

Atul Bhai v. Mohd. Hanik

2008-08-20

N.K.MODY

body2008
Judgment N.K. Mody, J. : Being aggrieved by the order dated 12.8.2008 passed by Learned Additional Sessions Judge, Jhabua in Criminal Appeal No. 69 of 2008, whereby application filed by the petitioner under Sec. 389 CrPC for suspension of sentence awarded by the learned Trial Court was dismissed, present petition has been filed. 2. Short facts of the case are that petitioner was prosecuted by respondent No. 1 under Sec. 138 of Negotiable Instruments Act which shall be referred hereinafter as Act. The prosecution filed by the respondent No. 1 was registered as case No. 679 of 2007 and vide judgment dated 23.7.2008 passed by JMFC, Jhabua, petitioner was convicted under the Act and was directed to pay a sum of Rs. 1,50,000/- as compensation and RI of one year. Upon filing of an application by the petitioner the jail sentence was suspended by the learned Trial Court vide order dated 23.7.2008 for a period of 15 days upon depositing a sum of Rs. 20,000/-. This amount was duly deposited by the petitioner and also appeal was filed alongwith an application for suspending the sentence. The appeal filed by the petitioner was registered as Criminal Appeal No. 69 of 2008 and vide order dated 12.8.2008, the application filed by the petitioner for suspension of sentence was dismissed on the ground that as per direction of the learned Trial Court steps were not taken by the petitioner in time for filing of the appeal and the application for suspension of sentence against which the present petition has been filed. 3. Learned counsel for the petitioner argued at length and submits that impugned order is illegal and deserves to be set aside. It is submitted that :vide order dated 23.7.2008 fifteen days time was granted by the learned Trial Court for filing of an appeal and obtaining the order relating to suspension of sentence from the appellate Court subject to depositing of Rs. 20,000/-. 4. Learned counsel submits that immediately thereafter the amount of Rs. 20,000/-was deposited by the petitioner and appeal was also filed by the petitioner alongwith application in time. It is submitted that the impugned order passed by the learned Court below is illegal which deserves to set aside. 5. 20,000/-. 4. Learned counsel submits that immediately thereafter the amount of Rs. 20,000/-was deposited by the petitioner and appeal was also filed by the petitioner alongwith application in time. It is submitted that the impugned order passed by the learned Court below is illegal which deserves to set aside. 5. Shri G.S. Chouhan, learned counsel for the respondent No. 2 submits that the appeal was filed by the petitioner on 7.8.2008 which was the last date granted by the learned Trial Court and the appeal and application came up for hearing before the learned Appellate Court on 12.8.2008. It is submitted that the day on which the appeal and application came up for hearing before the appellate Court, the time granted by the learned Trial Court was over, therefore, petitioner was duty bound to surrender before the learned Trial Court on completion of 15 days. Learned counsel submits that in the facts and circumstances of the case no illegality has been committed by the learned appellate Court in dismissing the application. 6. From perusal of the record it is evident that the judgment was passed by the learned Trial Court on 23.7.2008. Application for suspension of sentence was filed by the petitioner on that very day and learned Trial Court also allowed the same on that very day whereby 15 days time was granted to the petitioner for bringing an order of suspension of sentence by the appellate Court subject to depositing a sum of Rs. 20,000/-. It appears that there was a delay in the part of petitioner in depositing the amount. 7. Keeping in view the fact that the petitioner is resident of another state and also the amount was deposited by the petitioner, this Court is of the view that the learned appellate Court below committed error in dismissing the application. In view of this revision petition filed by the petitioner is allowed and the impugned order passed by the learned appellate Court is set aside and sentence awarded by the learned Trial Court is suspended subject to furnishing a bail bond of Rs. 10,000/- and also the surety of the like amount for his appearance before the learned appellate Court within two weeks from the date of receipt of certified copy of the order and also upon depositing the balance amount awarded by the learned Trial Court within a period of two months.