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2015 DIGILAW 2201 (BOM)

Ajay v. Laxmikant Trading Co. Pvt. Ltd.

2015-09-21

V.M.DESHPANDE

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JUDGMENT V.M. Deshpande, J. 1. Rule. Rule made returnable forthwith. Heard finally by consent of parties. The petitioners faced prosecution in a private complaint filed on behalf of the respondent for the offence punishable under Section 138 of Negotiable Instruments Act (N.I. Act for short). The proceedings which were registered as Sum. Criminal Complaint Case No. 935 of 2009 were for dishonour of cheque for Rs. 05,45,000/-. The trial Magistrate found the petitioners guilty of the offence punishable under Section 138 of N.I. Act and directed them to suffer simple imprisonment for four months and to pay compensation of Rs. 5,80,000/- and in default to further undergo simple imprisonment for two months. 2. Feeling dissatisfied with the said judgment and order of conviction, statutory appeal was preferred before the appellate Court. The said appeal was registered as Criminal Appeal No. 65 of 2015. Along with the appeal, an application under Section 389 of Code of Criminal Procedure for suspension of substantive jail sentence and for grant of bail was also filed. The said application was allowed by the learned Sessions Judge vide order dated 17.6.2015. The learned Sessions Judge suspended the substantive jail sentence, however imposed following conditions: (a) Accused shal 1 furnish bank guarantee of Rs. 05,40,000/- to be continued and required till disposal of appeal. (b) shall co-operate in disposal of appeal at its earlier. (c) shall furnish PB & SB of Rs. 15,000/- each in addition to above. The petitioners are aggrieved with imposition of condition (a) and hence are before this Court. It is to be noted here that the petitioners have already deposited an amount of Rs. 45,000/-, though no fine amount was ordered to be paid. 3. A right is created in favour of petitioners under Section 374 of Code of Criminal Procedure. It is absolute one. The judgment and order of conviction passed by the learned Magistrate, which is questioned before the appellate Court, has not reached finality. The appeal challenging the conviction is still pending. The question of compensation will come into play only after the conclusion by the appellate court that the petitioners are guilty of the offence punishable under Section 138 of N.I. Act. 4. The Hon'ble Apex Court in the case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr. reported in 2007 ALL MR. The question of compensation will come into play only after the conclusion by the appellate court that the petitioners are guilty of the offence punishable under Section 138 of N.I. Act. 4. The Hon'ble Apex Court in the case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr. reported in 2007 ALL MR. (Cri) 1775 (S.C.) in paragraphs 52 and 53 of the said judgment observed as under: "52. Unfortunately, the Legislature has not made any express provision in this behalf. In absence of any express provision, the question must be considered having regard to the overall object of a statute. We have noticed hereinbefore that Article 21 of the Constitution of India read with section 374 of Cri.P.C. confers a right of appeal. Such a right is an absolute one. In a case where a judgment of conviction has been awarded, the Court can release a person on bail having regard to the nature of offence but as also the other relevant factors including its effect on society. A person upon arrest may have to remain in jail as an under trial prisoner. So would a person upon conviction. 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 directed to be paid, which would necessarily mean that some conditions therefor 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. 53. An order may not be passed which the appellant cannot comply with resulting him being sent to prison. Appellate Court, in such cases, must make an endeavour to strike a balance. Section421 of the Code of Criminal Procedure may take recourse to, but therefor he cannot be remanded to custody." 5. The condition imposed upon the appellant who seeks the remedy before the appellate court challenging the order of conviction shall not be onerous. Appellate Court, in such cases, must make an endeavour to strike a balance. Section421 of the Code of Criminal Procedure may take recourse to, but therefor he cannot be remanded to custody." 5. The condition imposed upon the appellant who seeks the remedy before the appellate court challenging the order of conviction shall not be onerous. In the present case, even before there being a verdict from the appellate Court, the appellate Court has directed to furnish bank guarantee of the entire amount. In my view, it will be a onerous condition. In that view of the matter, the petition needs to be allowed and impugned order needs to be modified. That leads me to pass following order. ORDER (i) Writ petition is allowed. (ii) Condition (a) imposed by the learned Sessions Judge, Chandrapur, while considering the application for suspension of substantive jail sentence is hereby set aside and instead the petitioners shall deposit Rs. Two lac (deducting Rs. 45,000/- which is already deposited) within a period of six weeks from today before the Sessions Court, Chandrapur, in Criminal Appeal No. 65/15. (iii) Upon such deposit within the stipulated period, the Sessions Judge shall invest the said amount in any nationalised bank so that the amount will get appropriate interest. The successful litigant will receive the said amount of Rs. two lac along with the interest. (iv) The substantive jail sentence shall remain suspended during the pendency of criminal appeal No. 65/15. No costs. Rule is made absolute in above terms.