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2013 DIGILAW 1366 (BOM)

Santosh Shahaji Walke v. Narayan Raoji Kalbande

2013-07-19

P.D.KODE

body2013
JUDGMENT Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. The application is directed against the order dated 22.5.2012 passed upon the application for suspension of sentence made by the applicant-appellant in an appeal before the Court of Sessions challenging his order of conviction and sentence and payment of compensation as ordered by the trial court. 3. The applicant-appellant was convicted by the trial court for commission of offence under Section 138 of the Negotiable Instruments Act upon the private complaint instituted by Non-Applicant No. 1. 4. It is the grievance of the learned counsel for the applicant-appellant that by the impugned order passed, the appellant was directed to deposit balance amount of fine imposed i.e. Rs. 60,000/- within 10 days before the trial court. It is submitted that out of total fine amount of Rs. 1,10,000/- ordered, the appellant had already deposited Rs. 55,000/- before the trial court. 5. Shri Kurekar, learned counsel for the applicant, submitted that in spite of deposit of such amount, the appellate court, upon the application made by the appellant for suspension of sentence, directing the appellant to deposit an amount of Rs. 60,000/- within 10 days and on failure directing Judicial Magistrate First Class to take necessary step in execution of judgment and order of conviction dated 20.4.2012 has rendered, his application for suspension of sentence as well as appeal is nugatory. It is submitted that such an onerous condition imposed has defeated the statutory right of appeal given to the appellant. Reliance is placed upon the decision in the case of Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd. and another, reported in (2007) 6 SCC 528 : [2007 ALL MR (Cri) 1775 (S.C.)]. It is urged that the issue involved in the present application i.e. whether the appellate court can impose such onerous and unreasonable condition defeating right of an appeal, is squarely decided in said decision. 6. Shri Kurekar, learned counsel for the applicant, submitted that he is not disputing that some reasonable condition as fit, deem and proper could be imposed by the appellate court. It is submitted that having due regard to the total amount of fine awarded, the fact of Rs. 55,000/- already deposited, the appellant could have been put to the terms by putting the condition of the depositing some reasonable amount but not unreasonable amount as ordered by the trial court. It is submitted that having due regard to the total amount of fine awarded, the fact of Rs. 55,000/- already deposited, the appellant could have been put to the terms by putting the condition of the depositing some reasonable amount but not unreasonable amount as ordered by the trial court. It is submitted that the appellant, on his part, is ready to deposit further amount of Rs. 25,000/- in the trial court and furthermore is ready to go with hearing of the appeal. It is contended that this is a fit case for exercising the powers under Section 482 of the Code of Criminal Procedure and not exercising the same, would result in travesty of justice. 7. Shri Shinde, learned counsel for Non-Applicant No. 1, has submitted that he is not disputing the proposition laid down by the decision of the Apex Court and is making only reasonable request for directing the applicant-appellant to deposit some reasonable amount as deem fit and proper by the Court and permit non-applicant no. 1 to withdraw the said amount, without prejudice to his right, by giving proper condition. 8. The perusal of the decision in the case of Dilip S. Dahanukar, [2007 ALL MR (Cri) 1775 (S.C.)] (supra) fully supports the submissions canvassed by the learned counsel for the applicant i.e. while considering the question of suspension of sentence awarded by the trial court, the appellate court is required to consider all the circumstances relevant to the subject matter but till is not entitled to impose an onerous condition defeating right of statutory appeal granted to the appellant. 9. In the facts and circumstances of the present case, giving of such a direction, as given by the trial court, clearly appears to be uncalled for. The same appears accordingly and thereby the applicant appellant was directed to deposit the entire fine amount. Hence, such an order cannot be legally sustained and the same is hereby quashed and set aside. The applicant is additionally directed to deposit an amount of Rs. 25,000/- before the trial court within four weeks from today. Upon such a compliance, the sentence imposed by the trial court upon the applicant stands suspended until disposal of the appeal by the Court of Sessions. The Court of Sessions is directed to decide the said appeal as expeditiously as possible. 25,000/- before the trial court within four weeks from today. Upon such a compliance, the sentence imposed by the trial court upon the applicant stands suspended until disposal of the appeal by the Court of Sessions. The Court of Sessions is directed to decide the said appeal as expeditiously as possible. Liberty to Non-Applicant No. 1 to apply for withdrawal of the amount without prejudice to his right and subject to furnishing adequate security and undertaking that in event of the applicant being successful in an appeal preferred by him, he will re-deposit the amount back in the court. 10. Rule is made absolute in the aforesaid terms. Appeal allowed.