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2018 DIGILAW 1423 (RAJ)

Deewan Singh v. State of Rajasthan

2018-07-03

VIJAY BISHNOI

body2018
JUDGMENT Vijay Bishnoi, J. - This criminal misc. petition under section 482 CrPC, 1973 is filed by the petitioner being aggrieved with the order dated 16.05.2017 passed by the Sessions Judge, Bikaner (for short 'the appellate court' hereinafter) in Cr. Appeal No.84/2017, Deewan Singh vs. State, whereby the appellate court has suspended the sentence of the petitioner passed by the trial court subject to the condition that the petitioner shall deposit an amount of Rs. 8,00,000/- within a period of one month before the trial court and shall also furnish a personal bond in the sum of Rs. 1,00,000/- along with two surety bonds in the sum of Rs. 50,000/- each. 2. Brief facts of the case are that proceedings under section 138 of the N.I. Act were initiated against the petitioner at the instance of respondent No.2 before the trial court. After full fledged trial, the trial court vide judgment dated 27.04.2017 held the petitioner guilty and convicted him for the offence punishable under section 138 of the N.I. Act and sentenced him to undergo 2 years' simple imprisonment and to pay a fine of Rs. 39,50,000/-. 3. Being aggrieved with the same, the petitioner preferred an appeal under section 389 CrPC, 1973 before the appellate court and along with the said appeal, the petitioner also filed an application for suspension of sentence. The appellate court, vide impugned order dated 16.05.2017, has allowed the application for suspension of sentence of the petitioner subject to the condition that the petitioner shall deposit an amount of Rs. 8,00,000/- within a period of one month and shall also furnish a personal bond in the sum of Rs. 1,00,000/- along with two surety bonds in the sum of Rs. 50,000/- each. Being aggrieved with the same, the petitioner has preferred this criminal misc. petition. 4. Learned counsel for the petitioner has argued that imposition of condition while suspending the sentence is illegal and onerous and, therefore, the impugned order is liable to be set aside to the extent of imposition of condition of depositing Rs. 8,00,000/-. It is also argued that right of appeal is a statutory right and it is settled that any condition, which is onerous, is not liable to be imposed so as to curtail statutory right of an accused. 5. 8,00,000/-. It is also argued that right of appeal is a statutory right and it is settled that any condition, which is onerous, is not liable to be imposed so as to curtail statutory right of an accused. 5. It is further argued that this Court in various pronouncements, made it clear that imposition of such condition while suspending sentence during the pendency of appeal is wholly unjustified and arbitrary. Learned counsel for the petitioner has, therefore, prayed that the impugned order is liable to be set aside up to the extent of imposition of condition of depositing Rs. 8,00,000/-. 6. In support of the above arguments, learned counsel for the petitioner has placed reliance on decision of this Court dated 10.05.2017 rendered in S.B.Cr. Misc. (Pet.) No.1387/2017, Tara Chand Prajapat vs. State of Rajasthan & Anr. 7. Per contra, learned Public Prosecutor and the counsel appearing on behalf of respondent No.2 have vehemently opposed the criminal misc. petition. 8. Learned counsel Mr. Anil Kumar Singh appearing on behalf of respondent No.2 has argued that imposition of condition of depositing part payment of fine cannot be said to be illegal and onerous in any manner as the appellate court is having all jurisdiction to impose such condition. 9. Mr. Singh has further argued that the Hon'ble Supreme Court has also held that the appellate court can impose reasonable condition while suspending sentence and in the present case, the condition imposed by the appellate court of depositing part payment of fine is reasonable and the same is not liable to be interfered with. 10. In support of above arguments, learned counsel for the respondent No.2 has placed reliance on decision of Hon'ble Supreme Court rendered in Satyendra Kumar Mehra alias Satendera Kumar Mehra vs. State of Jharkhand, AIR 2018 SC 1587 . 11. Heard learned counsel for the parties and perused the impugned order. 12. Now the question comes before this Court whether the appellate court while exercising powers under section 389(1) CrPC, 1973 can impose a condition of depositing fine or part of the fine (which is also a sentence) while suspending sentence of an accused, who is convicted and sentenced under section 138 of the N.I. Act. 13. 12. Now the question comes before this Court whether the appellate court while exercising powers under section 389(1) CrPC, 1973 can impose a condition of depositing fine or part of the fine (which is also a sentence) while suspending sentence of an accused, who is convicted and sentenced under section 138 of the N.I. Act. 13. The Hon'ble Supreme Court in Stanny Felix Pinto vs. M/s. Jangid Builders Pvt. Ltd. And Anr, AIR 2001 SC 659 has upheld the direction of depositing the part of the fine and has held as under: "2. When a person was convicted under section 138 of the Negotiable Instruments Act and sentenced to imprisonment and fine he moved the superior court for suspension of the sentence. The High Court while entertaining his revision granted suspension of the sentence by imposing a condition that part of the fine shall be remitted in court within a specified time. It is against the said direction that this petition has been filed. In our view the High Court has done it correctly and in the interest of justice. We feel that while suspending the sentence for the offence under section 138 of the Negotiable Instruments Act it is advisable that the court imposes a condition that the fine part is remitted within a certain period. If the fine amount is heavy, the court can direct at least a portion thereof to be remitted as the convicted person wants the sentence to be suspended during the pendency of the appeal. In this case the grievance of the appellant is that he is required by the High Court to remit a huge amount of rupees four lakhs as a condition to suspend the sentence. When considering the total amount of fine imposed by the trial court (twenty lakhs of rupees) there is nothing unjust or unconscionable in imposing such a condition. Hence, there is no need to interfere with the impugned order. As such no notice need be issued to the respondent. Appeal is accordingly dismissed." 14. Recently, the Hon'ble Supreme Court in Satyendra Kumar Mehra alias Satendera Kumar Mehra vs. State of Jharkhand (supra) while interpreting the provisions of sections 357 and 389 CrPC, 1973 has held as under: "34. Hence, there is no need to interfere with the impugned order. As such no notice need be issued to the respondent. Appeal is accordingly dismissed." 14. Recently, the Hon'ble Supreme Court in Satyendra Kumar Mehra alias Satendera Kumar Mehra vs. State of Jharkhand (supra) while interpreting the provisions of sections 357 and 389 CrPC, 1973 has held as under: "34. We, however, make it clear that Appellate Court while exercising power under Section 389, Cr.P.C., 1973 can suspend the sentence of imprisonment as well as of fine without any condition or with conditions. There are no fetters on the power of the Appellate Court while exercising jurisdiction under Section 389, Cr.P.C., 1973. The Appellate Court could have suspended the sentence and fine both or could have directed for deposit of fine or part of fine." 15. In view of the law laid down by the Hon'ble Supreme Court in the above referred cases, the judgment of this Court, upon which learned counsel for the petitioner has placed reliance is of no help to the petitioner. 16. This Court is also of the opinion that the total fine of Rs. 39,50,000/- is imposed upon the petitioner by the trial court as a sentence and the appellate court has directed the petitioner to deposit only Rs. 8,00,000/- while suspending his sentence, hence, looking to the amount of total fine, it cannot be said that the condition imposed by the appellate court is unreasonable. 17. Hence, there is no force in this petition and the same is, therefore, dismissed. However, the petitioner is granted one month's time from today to deposit the amount of Rs. 8,00,000/- as directed by the appellate court in the impugned order. Stay petition also stands dismissed.