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2011 DIGILAW 12 (GUJ)

Anilbhai Baijnath Bajpayee v. State of Gujarat

2011-01-11

M.R.SHAH

body2011
ORDER : M.R. Shah, J. RULE. Shri K.P. Raval, learned APP waives service of notice of rule on behalf of respondent no. 1-State in each of the applications and Shri Rajesh Kanani, learned advocate waives service of notice of rule on behalf of respondent no. 2-original complainant in each of the applications. 2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, all these applications are taken up for final hearing today. 3. As common question of law and facts arise in these group of applications they are being disposed of by this common judgement and order. 4. In all these applications under Section 482 of the Code of Criminal Procedure respective applicants-original accused have prayed for an appropriate writ, order or direction to quash and set aside the condition imposed by the learned Additional City Sessions Judge, Court No. 7, Ahmedabad of depositing Rs. 1,00,000/- for suspension of sentence in Criminal Appeal Nos. 88/2010 to 94/2010. 5. Being aggrieved and dissatisfied with the judgement and order passed by the learned Metropolitan Magistrate, Negotiable Instruments Act, Court No. 4, Ahmedabad in Criminal Case No. 3082/2008, 3083/2008, 3084/2008, 7239/2008, 7240/2008, 7241/2008 and 7242/2008 convicting the respective applicants-original accused for the offence under Section 138 of the Negotiable Instruments Act, the respective applicants-original accused preferred Criminal Appeal Nos. 88/2010 to 94/2010 before the learned Additional City Sessions Judge, Court No. 7, Ahmedabad. In respective appeals, respective applicants-original accused submitted an application below Exh. 4 under Section 389 of the Code of Criminal Procedure for bail/suspension of sentence imposed by the learned trial Court and the learned Additional City Sessions Judge, Court No. 7, Ahmedabad vide impugned orders dated 05/03/2010 passed an order to suspend implementation and operation of the impugned order and sentence during pendency of the appeals and the respective applicants is ordered to be released on the same bail as in the trial Court with fresh bond during pendency of the appeals, however, the respective applicants is directed to deposit a sum of Rs. 1 lakh in each of the application. Hence, being aggrieved and dissatisfied with the orders passed by the learned Additional City Sessions Judge, Court No. 7, Ahmedabad dated 05/03/2010 below Exh. 4 in Criminal Appeal Nos. 1 lakh in each of the application. Hence, being aggrieved and dissatisfied with the orders passed by the learned Additional City Sessions Judge, Court No. 7, Ahmedabad dated 05/03/2010 below Exh. 4 in Criminal Appeal Nos. 88/2010 to 94/2010 in so far as directing the respective applicants to deposit a sum of Rs. 1 lakh in each of the appeals while suspending the sentence, the respective applicants have preferred the present applications. 6. Shri S.V. Raju, learned Senior advocate appearing on behalf of the respective applicants in all the applications has contended that imposing of condition of deposit of Rs. 1 lakh by the learned appellate Court while suspending the sentence imposed by the learned trial Court is exorbitant and contrary to the settled law. It is submitted that even if such condition is imposed it has to be reasonable and powers have to be exercised judiciously. It is submitted that as such to impose such a condition of deposit of the amount of Rs. 1 lakh would be taking away the right of the respective applicants-original accused to be released on bail while suspending the sentence. It is submitted that as such normally the rule is to release the respective applicants on bail and to suspend the sentence for the offence under Section 138 of the Negotiable Instruments Act. Shri S.V. Raju, learned Senior advocate appearing on behalf of the respective applicants has further submitted that the respective applicants is ready and willing to abide by reasonable condition that may be imposed by this Court. Under instructions from the respective applicants, Shri S.V. Raju, learned Senior advocate appearing on behalf of the respective applicants has submitted that over and above Rs. 25,000/- deposited by the respective applicants pursuant to the earlier order passed by this Court the respective applicants is ready and willing to deposit a further sum of Rs. 25,000/- each before the learned appellate Court (in all Rs. 50,000/-) and, therefore, it is requested to consider the same and/or modify the impugned orders passed by the learned appellate Court while suspending the sentence imposed by the learned trial Court. 6.1. 25,000/- each before the learned appellate Court (in all Rs. 50,000/-) and, therefore, it is requested to consider the same and/or modify the impugned orders passed by the learned appellate Court while suspending the sentence imposed by the learned trial Court. 6.1. Shri S.V. Raju, learned Senior advocate appearing on behalf of the respective applicants has relied upon the following decisions of the Hon'ble Supreme Court in support of his prayer to quash and set aside the impugned orders passed by the learned appellate Court in so far as imposing condition of deposit of Rs. 1 lakh each while suspending the sentence imposed by the learned trial Court. (1) U. Palaniappan And Anr v. Sub-Inspector Of Police reported in (2005) 10 SCC 464 ; (2) Amarjit Singh v. State Of Nct Of Delhi reported in (2009) 13 SCC 769 ; (3) Munish Bhasin Vs. State (Govt. Of N.C.T. Of Dlehi) & Anr reported in AIR 2009 Supreme Court 2072; (4) Sandeep Jain Vs. National Capital Territory Of Delhi reported in (2000) 2 SCC 66 ; (5) Kiran Kumar Vs. State Of M.P. reported in (2001) 9 SCC 211 ; (6) Suresh Kumar And Ors V. State (Nct Of Delhi) reported in (2001) 10 SCC 338 . 7. Shri Rajesh Kanani, learned advocate appearing on behalf of respondent no. 2-original complainant appearing in each of the applications has submitted that as such no illegality has been committed by the learned appellate Court by imposing condition of deposit of Rs. 1 lakh while suspending the sentence imposed by the learned trial Court. It is submitted that as the offence involved is for the offence under Section 138 of the Negotiable Instruments Act and the learned trial Court has convicted the respective applicants-original accused, in that case, looking to the purpose and object of the Negotiable Instruments Act such a condition while suspending the sentence is just and proper. 7.1 Shri Rajesh Kanani, learned advocate appearing on behalf of the respondent-original complainant has relied upon the decision of the Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai And Ors Vs. 7.1 Shri Rajesh Kanani, learned advocate appearing on behalf of the respondent-original complainant has relied upon the decision of the Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai And Ors Vs. State Of Gujarat reported in (1999) 4 SCC 421 by submitting that looking to nature of offence committed by the respective applicants i.e. for the offence under Section 138 of the Negotiable Instruments Act when the learned trial Court has convicted the respective applicants for the offence under Section 138 of the Negotiable Instruments Act for dishonour of cheque of Rs. 5 lakhs in each of the respective appeals it cannot be said that the learned appellate Court has committed an error in directing the respective applicants to deposit a sum of Rs. 1 lakh in each of the appeals while suspending the sentence imposed by the learned trial Court. 8. Shri K.P. Raval, learned APP appearing on behalf of the respondent-State has requested to pass an appropriate order in the facts and circumstances of the case of the case. 9. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the respective applicants have been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of cheque of Rs. 5 lakh in each of the case and is sentenced to undergo one year Simple Imprisonment and is also directed to pay/deposit a sum of Rs. 5,000/- towards fine and in default to undergo three months Simple Imprisonment. Respective applicants-original accused against the judgement and order of conviction and sentence passed by the learned Metropolitan Magistrate have preferred respective appeals and submitted applications under Section 389 of the Code of Criminal Procedure to release them on bail and to suspend the sentence and the learned appellate Court has allowed the said applications while releasing the respective applicants on bail and suspending sentence on condition that respective applicants-original accused shall deposit a sum of Rs. 1 lakh in each of the respective appeals and, therefore, the short question, which is posed for consideration of this Court, is whether the learned appellate Court was justified in imposing condition to deposit a sum of Rs. 1 lakh? 10. 1 lakh in each of the respective appeals and, therefore, the short question, which is posed for consideration of this Court, is whether the learned appellate Court was justified in imposing condition to deposit a sum of Rs. 1 lakh? 10. At the outset it is required to be noted that the respective applicants have been convicted for the offence under Section 138 of the Negotiable Instruments Act for dishonour of the cheque of Rs. 5 lakhs, and, therefore, this Court is required to consider the object and purpose of enactment of Section 138 of the Negotiable Instruments Act and the transaction is commercial in nature. It is also required to be noted that even respondent no. 2-original complainant has also preferred appeal against the order passed by the learned Metropolitan Magistrate in not awarding compensation under Section 357(3) of the Code of Criminal Procedure. In case of BHAGWAN RAMA SHINDE GOSAI (Supra) the Hon'ble Supreme Court had an occasion to consider Section 389 of the Code of Criminal Procedure and suspension of sentence pending appeal. It is observed by the Hon'ble Supreme Court that the prayer for suspension of sentence pending appeal should be considered liberally unless there is any statutory restriction. It is also further observed and held by the Hon'ble Supreme Court in the said decision that the learned appellate Court may impose conditions when bail is granted and, therefore, it cannot be said that while suspending the sentence, pending respective appeals, the learned appellate Court cannot impose conditions. It depends upon the facts and circumstances of the case and the offence committed by the accused for which they have been convicted. In the present case it is alleged by respondent no. 2-original complainant that the respective applicants have sold their permanent residence and if after conclusion, at the end of the appeal, judgement and order passed by the learned trial Court is confirmed the respective applicants may not be available and/or there may not be any property available. It is true that the conditions imposed while suspending the sentence should be reasonable and the powers are required to be exercised judiciously. Against the cheque amount of Rs. 5 lakhs when the learned appellate Court has imposed condition of deposit of Rs. 1 lakh while suspending the sentence imposed by the learned trial Court, it cannot be said that such a condition is unreasonable. Against the cheque amount of Rs. 5 lakhs when the learned appellate Court has imposed condition of deposit of Rs. 1 lakh while suspending the sentence imposed by the learned trial Court, it cannot be said that such a condition is unreasonable. Considering the offence for which the respective applicants is convicted for the offence under Section 138 of the Negotiable Instruments Act the learned appellate Court is justified in imposing condition of deposit of Rs. 1 lakh while suspending the sentence imposed by the learned trial Court, which was for dishonour of cheque for Rs. 5 lakhs. 11. In so far as reliance placed upon the decisions of the Hon'ble Supreme Court in the case of U. PALANIAPPAN AND ANR (Supra), AMARJIT SINGH (Supra), MUNISH BHASIN (Supra) and SANDEEP JAIN (Supra) are concerned all the aforesaid decisions are while imposing condition on releasing the accused on bail at the pre-trial stage. Under the circumstances, the aforesaid decisions will not be applicable to the facts of the present case and will not be of any assistance to the respective applicants. 12. Now so far as the decision relied upon by the learned Senior advocate appearing on behalf of the respective applicants in the case of KIRAN KUMAR (Supra) is concerned it is to be noted that the offence for which the accused was convicted was for the offence under Sections 460, 376, 325 and 506 of the Indian Penal Code. Similarly in the case of SURESH KUMAR AND ORS (Supra) the accused was convicted for the offence under Section 307 read with Section 34 of the Indian Penal Code. In the present case as stated hereinabove respective applicants-original accused has been convicted for the offence under Section 138 of the Negotiable Instruments Act and the same is commercial in nature and different yardstick should be applied while exercising powers under Section 389 of the Code of Criminal Procedure and suspending the sentence imposed by the learned trial Court convicting the accused for the offence under Section 138 of the Negotiable Instruments Act. Looking to the nature of transaction and the object and purpose of enactment of Section 138 of the Negotiable Instruments Act, on suspending the sentence the learned appellate Court may impose condition of deposit of the amount, however, the same should be reasonable one and the learned appellate Court is required to exercise the discretion judiciously. Looking to the nature of transaction and the object and purpose of enactment of Section 138 of the Negotiable Instruments Act, on suspending the sentence the learned appellate Court may impose condition of deposit of the amount, however, the same should be reasonable one and the learned appellate Court is required to exercise the discretion judiciously. In the present Case as stated hereinabove against the cheque amount of Rs. 5 lakh, in each of the case when the learned appellate Court has imposed the condition of deposit of Rs. 1 lakh only in each of the respective appeals, it cannot be said that the learned appeal late Court has not exercised the discretion judiciously and/or the amount ordered to be deposited is too exorbitant, which calls for the interference of this Court. 13. In view of the above and for the reasons stated hereinabove all the applications fail and the same deserve to be dismissed and is accordingly dismissed. Time to deposit the balance amount as directed by the learned appellate Court is hereby extended for a further period of six weeks form today i.e. till 19/02/2011. 14. In the facts and circumstances of the case, the learned appellate Court is also directed to finally decide and dispose of the aforesaid Criminal Appeal Nos. 88/2010 to 94/2010 alongwith the appeal preferred by the original complainant at the earliest but not later than 31/12/2011. Rule is discharged in each of the applications. Applications dismissed.