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2010 DIGILAW 471 (ORI)

Bikram Kumar Jena v. State of Orissa

2010-07-15

C.R.DASH

body2010
ORDER 15.07.2010 — This revision arises out of the order dated 12.02.2009 passed by the learned Sessions Judge, Khurda at Bhubaneswar in Criminal Appeal No. 8 of 2009, directing the petitioner to depos¬it a sum of rupees one lakh within a period of one month before the trial Court, as a condition precedent for suspension of the sentence. The facts relevant for disposal of this revision are as follows: Petitioner faced trial in the Court of S.D.J.M., Bhubaneswar for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘the Act’). Learned Trial Court, on consideration of the evidence, found the petitioner guilty of offence under Section 138 of the Act. Consequently, the petition¬er was sentenced to suffer S.I. for six months and to pay a com¬pensation of Rs.15,00,000/- (fifteen lakhs) to the complainant. Impugning the trial Court’s judgment, petitioner preferred an appeal before the learned Sessions Judge, Khurda at Bhubaneswar. In the appeal, two petitions were filed, one for enlargement of the petitioner on bail and another for suspension of the sentence pending disposal of the appeal. Learned Sessions Judge granted bail to the petitioner and suspended the sentence so far as payment of compensation is concerned subject to the petitioner depositing Rs.1,00,000/- (one lakh) before the trial Court within a period of one month. The later order has been impugned in the present revision. Learned counsel for the petitioner submits that the right of appeal being a statutory right, and a fundamental right in view of the expansive definition of Article 21 of the Constitution of India, learned appellate Court has grossly erred in subjecting such a right of the petitioner to the condition of his (petition¬er) depositing certain heavy amount. It is further submitted that learned appellate Court has impaired the petitioner’s right to appeal by imposing such a condition. He relies on the case of Dillip S. Dahanukar v. Kotak Mahindra Co. Ltd. and another, 2007 (II) OLR (SC)-263/ (2007) 6 SCC 528 , to substantiate his conten¬tion. Learned counsel for opposite party no.2 on the other hand relies on the case of Stanny Felix Pinto v. Jangid Builders Pvt. Ltd. and another, (2001) 2 SCC 416 /A.I.R. 2001 SC 659 to substan¬tiate his contention, which is supportive of the impugned order. It is no more res integra that appeal is a statutory right. Learned counsel for opposite party no.2 on the other hand relies on the case of Stanny Felix Pinto v. Jangid Builders Pvt. Ltd. and another, (2001) 2 SCC 416 /A.I.R. 2001 SC 659 to substan¬tiate his contention, which is supportive of the impugned order. It is no more res integra that appeal is a statutory right. Hon’ble Supreme Court referring to number of authorities on the point have reiterated the same view in the case of Dillip S. Dahanukar (supra). However, in paragraph-55 of the judgment, Hon’ble Apex Court have held thus- “...A person may also have to remain in jail, in the event he defaults in payment of fine, if he is so directed. But when a direction is issued for payment of compensation, having regard to Sub-section (2) of Section 357 of the Code, the application thereof should ordinarily be directed to be stayed. It will, therefore, be for the Court to stay the operation of that part of the judgment whereby and whereunder compensation has been direct¬ed to be paid, which would necessarily mean that some conditions therefore may also be imposed. A fortiori a part of the amount of compensation may be directed to be deposited, but the same must be a reasonable amount.” Hon’ble Supreme Court in the aforesaid judgment have re¬ferred to the case of Stanny Felix Pinto supra. The observation of Hon’ble supreme Court quoted supra clearly shows that, Hon’ble Apex Court in the case of Dillip S. Dahanukar has not taken a different view than what had been taken in the case of Stanny Felix Pinto. And Hon’ble Supreme have come to take the aforesaid view after detailed discussion about the nature and extent of the rights of an appellant in a criminal appeal. It is worthwhile to note here that in the aforesaid case of Dillip S. Dahanukar Hon’ble Apex Court had directed the convict to deposit a sum of Rs.1,00,000/- (one lakh) as a pre-condition for suspension of sentence and/or stay operation of the order regarding compensation. In view of my discussion supra, I do not find any justifica¬tion to interfere with the impugned order. In view of my discussion supra, I do not find any justifica¬tion to interfere with the impugned order. Learned counsel for the petitioner, in the alternative, submits that the petitioner is not in a position to deposit Rs.1,00,000/- (one lakh) in view of his financial stringency and question of his liability to discharge being a contentious ground in the appeal, a lenient view in the matter should be taken. Regard being had to such submission of the learned counsels for the parties and the fact that a reasonable approach should be made in issuing direction regarding remittance of a part of the compensation amount, it is directed that the petitioner shall deposit a sum of Rs.50,000/- (fifty thousand) within one month from today in accordance with the terms fixed by the learned appellate Court. Deposit of such amount by the appellant shall be without prejudice to the right and contentions of the parties to the appeal. As it is submitted by learned counsels for the par¬ties that the appeal is otherwise ready for hearing, it is di¬rected that the appeal be heard and disposed of within a period of four months from the date of receipt of a copy of this order. The Crl. Revision is accordingly disposed of. Crl. Revision disposed of.