JUDGMENT Rule. Rule made returnable forthwith. 2. Heard finally by consent of both sides. 3. By this application, applicant/original accused has prayed to quash and set aside the impugned order dated 19.4.2014 to the extent of imposing condition upon the applicant to deposit amount of Rs.6,50,000/- passed by the learned Judicial Magistrate, First Class, Court No.1, Akola in Summary Criminal Case No.2396 of 2009 and further to quash and set aside the order passed by the learned Additional Sessions Judge, Akola in Criminal Appeal No.40 of 2014 so far as it relates to imposing condition to deposit part amount of Rs.6,50,000/- which comes to Rs.4,70,000/-. 4. It appears that in the proceeding initiated by Non-applicant No.2/original complainant under the provisions of Section 138 of the Negotiable Instrument Act, applicant was convicted and is sentenced to suffer Simple Imprisonment for six months and is directed to pay fine of Rs.13,00,000/-, in default of payment of fine he is directed to suffer Simple Imprisonment for five months. Out of the fine amount Rs.12,75,000/- was directed to be paid to the complainant as compensation. 5. Above order was prayed to be suspended and accordingly vide order below Exhibit-154, the trial Court suspended order so far as it related to amount of fine directing the applicant to deposit amount of Rs.6,50,000/-, which was amount of cheque till 8.5.2014. The order is dated 19.4.2014. 6. Learned counsel for the applicant has submitted that inspite of grant of time upto 8.5.2014 for depositing Rs.6,50,000/-, learned trial Court insisted the applicant to make said payment on the date of order itself i.e. 19.4.2014 and for that reason applicant was constrained to file application vide Exhibit-156 before the trial Court praying for grant of 8 days' time to pay amount of Rs.6,50,000/- and further contended that on the date of filing of this application, applicant was however ready to deposit Rs.1,80,000/-. The trial Court allowed the same by directing the applicant to deposit Rs.1,80,000/- with further direction to make payment of remaining amount of Rs.4,70,000/- till 22.4.2014. 7. It also appears that the applicant had placed on record undertaking on the same date i.e. on 19.4.2014 thereby binding upon him to pay Rs.4,70,000/- without fail on 22.4.2014. The trial Court allowed the same by directing the applicant to deposit Rs.1,80,000/- with further direction to make payment of remaining amount of Rs.4,70,000/- till 22.4.2014. 7. It also appears that the applicant had placed on record undertaking on the same date i.e. on 19.4.2014 thereby binding upon him to pay Rs.4,70,000/- without fail on 22.4.2014. However, without abiding to his own undertaking it appears that the applicant preferred an appeal before the Additional Sessions Judge, Akola, wherein substantive sentence came to be suspended, on applicant depositing balance amount of Rs.4,70,000/- till 8.5.2014, against which order, applicant has preferred the present application. 8. According to the learned counsel for applicant, the trial Court as well as the appellate Court's order imposing condition upon the applicant to deposit remaining amount of Rs.4,70,000/- is illegal and for that purpose he has relied upon the case of Dilip Dahanukar vs. Kotak Mahindra Co. Ltd. reported in 2007(1) Bom.C.R. (Cri.) 769 : [2007 ALL MR (Cri) 1775 (S.C.)], wherein para 36 of the Judgment reads as under : "The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge." 9. Such a jurisdiction cannot be exercised at the whims and caprice of a judge." 9. However, on considering the documents placed on record by respondent No.2, the law relied cannot be directly made applicable in view of the fact that the respondent No.2/original complainant had placed on record material documents, wherefrom it cannot be said that the applicant is not in a position to make payment of Rs.4,70,000/- as directed by the learned Courts below, as from the document Annexure-R3, it reveals that on 5th March, 2013 applicant, in his name alone, had purchased plot worth Rs.25,00,000/-. Subsequently, applicant, on 22nd August, 2013, on his sole name had purchased another plot worth Rs.12,60,000/- and also sold the property by sale-deed dated 21st August, 2013 to the extent of Rs.44,51,000/-. On considering these transactions entered into by the applicant it cannot be said that the applicant is not in a position to not to make payment of remaining amount of Rs.4,70,000/-. 10. On considering the rejoinder filed by the applicant, it is tried to bring on record that out of the sale proceed, applicant has made re-payment of housing loan and other payments since he was suffering losses in his business, which was run by him in the name and style as M/s. Millennium Car Decor. There is nothing on record which prevented applicant from non-payment of amount Rs.4,70,000/-. There can be no dispute about the applicant making payment of other loan, whatsoever obtained by him like housing loan etc., but that can be no ground for applicant to withheld payment of Rs4,70,000/-. 11. Having considering the facts as stated above, I find no substance in the application. 12. Learned counsel for the applicant though had expressed his willingness to give directions to the applicant to give bank guarantee of the amount of Rs.4,70,000/-, learned counsel for the respondent No.2 has opposed for the same contending that on decision of appeal it would be difficult for the said respondent to encash the same. 13. In that circumstances, I am not inclined to issue directions to the applicant to furnish bank guarantee as suggested on his behalf. However, having considering the facts involved in the application, I find it necessary to issue directions to the applicant to deposit amount of Rs.4,70,000/- before the trial Court as per order below. The application, therefore, stands rejected. 14. In that circumstances, I am not inclined to issue directions to the applicant to furnish bank guarantee as suggested on his behalf. However, having considering the facts involved in the application, I find it necessary to issue directions to the applicant to deposit amount of Rs.4,70,000/- before the trial Court as per order below. The application, therefore, stands rejected. 14. The applicant is directed to deposit balance amount of Rs.4,70,000/- before the trial Court within 3 weeks from today. 15. Learned Additional Sessions Judge, Akola is directed to expeditiously dispose of the Criminal Appeal No.40 of 2014 within a period of six months from today. 16. In the above terms, rule is discharged. Ordered accordingly.