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2013 DIGILAW 698 (PNJ)

Shama Nand v. Nitin Khosla

2013-05-23

JITENDRA CHAUHAN

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JUDGMENT JITENDRA CHAUHAN, J. (ORAL) The present revision petition is directed against the order dated 22.10.2012, passed by the learned Additional Sessions Judge, Panchkula, whereby, the appeal preferred by the petitioner against his conviction under Section 138 of the Negotiable Instruments Act, read with Section 420 of the Indian Penal Code, vide order dated 27.09.2012, passed by the learned Judicial Magistrate 1st Class, Panchkula, was registered and the sentence of imprisonment was ordered to be suspended subject to the precondition that the petitioner shall deposit 1/3rd of the compensation, so awarded by the trial Court, within 15 days therefrom. The learned counsel for the petitioner, inter alia, contends that the direction to deposit the 1/3rd compensation amount as a precondition for bail is in contravention with the Statute and thus, deserves to be set aside. The learned counsel has placed reliance on a decision rendered by Hon'ble the Apex Court in Dilip S. Dahanukar Vs. Kota Mahindra Co. Ltd., 2007(2) RCR (Criminal) 636 to contend that the payment of compensation would automatically remain suspended during the pendency of the appeal, as the right to appeal is a fundamental right, which can neither be interfered with or impaired, nor it can be subjected to any condition. On the other hand, the learned counsel for the respondents jointly submit that the impugned order does not suffer from any illegality or perversity inasmuch as the learned Appellate Court did not impose any condition while entertaining the appeal and that the condition of payment of 1/3rd amount of compensation has been imposed as a precondition to the grant of suspension of sentence. I have heard the learned counsel for the parties. The petitioner is aggrieved against the order dated 22.10.2012, whereby the learned Appellate Court, while registering the appeal, ordered the suspension of sentence of imprisonment of the accused-petitioner, however, subject to the precondition, that the petitioner shall deposit 1/3rd of the compensation, so awarded by the trial Court, within 15 days therefrom. It has been argued that no such precondition is sustainable in the eye of law as the right to appeal is a statutory and legal right, which can neither be interfered with nor impaired, nor it can be subject to any condition. It has been argued that no such precondition is sustainable in the eye of law as the right to appeal is a statutory and legal right, which can neither be interfered with nor impaired, nor it can be subject to any condition. However, a perusal of the impugned order reveals that the accused has not been deprived of any such right by the Court as the precondition of payment of a part of the compensation has been imposed for grant of bail. In the considered opinion of this Court, the learned Appellate Court was well within its right to impose such condition. In Dilip S. Dahanukar's case (supra), Hon'ble the Apex Court has observed in para 75 as under :- “We are prima facie of the opinion (without going into the merit of the appeal) that the direction of the learned Trial Judge appears to be somewhat unreasonable. Appellant herein has been sentenced to imprisonment. Only fine has been imposed on the Company. Thus, for all intent and purpose, the learned Trial Judge has invoked both Sub-sections (1) and (3) of Section 357 of the Code. The liability of the appellant herein was a vicarious one in terms of Section 141 of the Negotiable Instruments Act. The question may also have to be considered from the angle that the learned Trial Judge thought it fit to impose a fine of Rs. 25,000/- only upon the Company. If that be so, a question would arise as to whether an amount of compensation for a sum of Rs. 15 lakhs should have been directed to be paid by the Chairman of the Company. We feel that it is not. We, therefore, are of the opinion : (i) In a case of this nature, Sub-Section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation; (ii) The Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. We feel that it is not. We, therefore, are of the opinion : (i) In a case of this nature, Sub-Section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation; (ii) The Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right; (emphasis is mine) (iii) The amount of compensation must be a reasonable sum; (iv) The Court, while fixing such amount, must have regard to all relevant factors including the one referred to in Sub-Section (5) of 357 of the Code of Criminal Procedure; (v) No unreasonable amount of compensation can be directed to be paid. In the instant case as well, the Appellate Court, while suspending the sentence has put the appellant on terms (payment of 1/3rd of the amount of compensation), however, no such precondition has been imposed for entertaining the appeal. Both are under different provisions of law. The quantum of compensation has not been challenged in the present petition. No other point has been raised. In view of the above discussion, this Court does not find any merit in the instant petition and the same is accordingly, dismissed.