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2018 DIGILAW 2165 (HP)

Atul Kumar v. Mahan Fire Protection

2018-12-06

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Being aggrieved and dissatisfied with the order dated 5.11.2018, passed by learned Additional Sessions Judge-I, Solan (camp at Nalagarh), District Solan, H.P., in Cr.M.A No.60-NL-4/2018, titled as Atul Kumar versus M/s Mahan Fire Protection, whereby learned Additional Sessions Judge, while suspending the sentence imposed by learned trial Court, directed the petitioner-accused to deposit an amount of Rs. 10 lacs and furnish personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of learned trial Court within a period of three weeks, petitioner-accused has approached this Court in the instant proceedings filed under Section 482 of the Code of Criminal Procedure, praying therein to modify the impugned order dated 5.11.2018. 2. In nutshell, the case of the petitioner-accused, as has been projected in the present petition before this court and argued by Mr. B.L.Soni, learned counsel for the petitioner is that a condition of depositing sum of Rs.10 lacs imposed by learned Additional Sessions Judge, while suspending the sentence imposed by the learned court below, is harsh and against the provisions contained under section 389 Cr.P.C. 3. Mr. M.A.Khan, learned Senior Advocate representing the respondent, while opposing the prayer made in the application, contended that there is no illegality and infirmity in the impugned order, rather same has been passed to safeguard and protect the interest of the respondent, who has been compelled to approach appropriate court of law by the applicant/accused for realization of his own money. He further contended that learned trial Court while holding applicant/accused guilty of having committed the offence punishable under Section 138 of the Negotiable Instruments Act, has convicted the accused and sentenced him to undergo simple imprisonment for six months and to pay compensation to the tune of Rs.5,50,00,000/- and as such, condition of depositing a sum of Rs.10 lacs is reasonable and by no stretch of imagination can be said to be on higher side. 4. I have heard learned counsel for the parties and carefully gone through record. 5. 4. I have heard learned counsel for the parties and carefully gone through record. 5. Though, Hon''ble High Court of Rajasthan in Amarveer Singh versus State of Rajasthan & others,2011 STPL 1209, Rajasthan, has held that Courts while exercising power under Section 389 Cr.P.C, has no power to impose condition of depositing amount of compensation while suspending the sentence, but this Court having taken note of the recent judgment passed by Hon''ble Apex Court in Satyendra Kumar Mehra @ Satendera Kumar Mehra versus State of Jharkhand,2018 STPL 4261, SC,wherein it has been categorically held by the Hon''ble Apex Court that Appellate Court while exercising power under Section 389 Cr.P.C. can suspend the sentence of imprisonment as well as of fine without any condition or with conditions, is not persuaded to agree with Mr. B.L.Soni, learned counsel for the petitioner that court below erred in imposing condition of depositing fine at the time of suspending sentence. 6. At this stage, it would be profitable to take note of para 34 of the judgment hereinbelow;- "34. We, however, make it clear that Appellate Court while exercising power under Section 389 Cr.P.C 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. The Appellate Court could have suspended the sentence and fine both or could have directed for deposit of fine or part of fine." 7. However, this Court is inclined to agree with Mr. Soni, learned counsel for the petitioner-accused that court below while suspending the sentence ought to have considered his financial condition and should not have called upon him to deposit amount, which was beyond his competence/reach. Documents placed on record clearly suggest that annual income of petitioner-accused from all sources is not more than 60,000/- per annum and as such, he cannot be expected to deposit Rs. 10 lacs, as has been ordered by the learned court below. Otherwise also right of party to file appeal, if any, laying therein challenge to the judgment of conviction cannot be defeated merely on account of non deposit of amount, if any, called to be deposited in the court below. However, Mr. 10 lacs, as has been ordered by the learned court below. Otherwise also right of party to file appeal, if any, laying therein challenge to the judgment of conviction cannot be defeated merely on account of non deposit of amount, if any, called to be deposited in the court below. However, Mr. Soni, fairly stated that as per the instructions imparted to him, petitioner is ready and willing to deposit some reasonable amount i.e. a sum of Rs. Two lacs in two installments in compliance of order dated 5.11.2018, which in my considered view is sufficient as far as imposing condition to suspend the sentence imposed by the court below, is concerned. 8. Consequently, in view of the above, the order dated 5.11.2018 is modified to the extent that petitioneraccused would deposit a sum of Rs. two lacs instead of Rs. 10 lacs, as ordered by the court below. A sum of Rs. One lac would be deposited within a period of two weeks, whereas remaining one lac would be deposited within a period one month thereafter. Accordingly, the present petition is disposed of in the aforesaid terms. Copy dasti.