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2020 DIGILAW 692 (ALL)

Manju Tiwari v. State of U. P.

2020-03-04

MANJU RANI CHAUHAN

body2020
JUDGMENT : 1. Heard Sri Gyanedra Pratap Singh, learned counsel for the applicant and Mr. P.K. Shahi, learned A.G.A assisted by Mr. Madnesh Prasad Singh, learned counsel for the State as also perused the record. 2. Learned counsel for the applicant and learned A.G.A. for the State agree that the present application may be disposed of at this stage without issuing notice or calling for any further affidavits in view of the order proposed to be passed today. 3. This application 482 Cr.P.C. has been filed to quash the judgment and order dated 24.01.2020 passed by the District and Sessions Judge, Lalitpur in Criminal Appeal No. 15 of 2019 (Smt. Manju Tiwari Vs. State of and another), which has been filed against the judgment and order dated 12.03.2019 passed by the Additional Chief Judicial Magistrate, Lalitpur, under Section 138 N.I. Act, Police Station-Lalitpur, District-Lalitpur. Under the impugned judgment, the appellate court has issued recovery notice for recovery of interim compensation amount. 4. It has been submitted by learned counsel for the applicant that a complaint was filed by the opposite party no.2 against the applicant under Section 138 N.I. Act before the concerned court below. On the complaint filed by the opposite party no.2, the concerned court below took cognizance and summoned the applicant for facing the trial. After conclusion of trial, the concerned court below vide judgment and order dated 12.03.2019 convicted the applicant under Section 138 N.I. Act for six months simple imprisonment and awarded fine of Rs. 4,00,000/-and in default of payment of fine one month additional simple imprisonment. The concerned court below has also clarified that out of total amount of fine/compensation of Rs. 4 lacs, Rs. 3.90 lacs has been directed to be paid in favour of opposite party no.2. Feeling aggrieved by the judgment and order of the trial court dated 12.03.2019, the applicant preferred Criminal Appeal No. 15 of 2019 before the Sessions Judge, Lalitpur on 11.04.2019 along with interim bail application. Thereafter, the Appellate Court vide order dated 11.04.2019 has admitted the appeal and released the applicant on bail with furnishing two sureties of Rs. 25,000/-and further directed the applicant to deposit 50% amount of total fine imposed by the trial court. Thereafter, the Appellate Court vide order dated 11.04.2019 has admitted the appeal and released the applicant on bail with furnishing two sureties of Rs. 25,000/-and further directed the applicant to deposit 50% amount of total fine imposed by the trial court. Subsequently, against the order dated 11.04.2019 passed by the Appellate Court, the applicant approached before this Court and the co-ordinate Bench of this Court has modified the order dated 11.04.2019 passed by the Appellate Court to the extent that applicant would deposit 20% of total fine imposed by the trial court. Taking into account the order passed by the co-ordinate Bench of this Court, the Appellate Court vide order dated 24.01.2020 directed the applicant to deposit 20 % of the compensation amount. 5. It has further been submitted by learned counsel for the applicant that husband of the applicant died in jail on 11.11.2019 during medical treatment and the applicant is also continuously ill and undergoing treatment after death of her husband. Therefore, she is not in a position to deposit 20% of compensation amount. In such circumstances, considering the condition of the applicant, till disposal of appeal, the amount of fine/penalty, which is to be paid by the applicant may be kept in abeyance. In support of his contention, learned counsel for the applicant has placed reliance upon the judgment of this Court in the case of Manoj Kumar Vishwakarma vs. State of U.P. and another reported in 2019(10) ACC (SH) 329, wherein, it has been held that since the appeal was admitted for final hearing and the applicant is hopeful of being successful in the appeal, it is justifiable to keep the amount of penalty in abeyance till disposal of appeal. 6. Per contra, learned A.G.A. for the State has conceded the submission advanced by the learned counsel for the applicant and submitted that in the special circumstances, wherein the appeal has been admitted for final hearing and it is hopeful that the applicant may succeed in the appeal, it is justifiable to keep the amount of penalty/fine in abeyance till the disposal of appeal. 7. I have considered the argument of the counsel for the applicant as well as learned A.G.A. for the State. Provision of Section 389 of Cr.P.C is reproduced as under:- "389. Suspension of sentence pending the appeal; release of appellant on bail. 7. I have considered the argument of the counsel for the applicant as well as learned A.G.A. for the State. Provision of Section 389 of Cr.P.C is reproduced as under:- "389. Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,- (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced." 8. A Bench of three Hon'ble Judges of Apex Court in the case of Rama Narang v. Ramesh Narang reported in (1995) 2 SCC 513 wherein the Apex Court has held that in certain situation the order of conviction can be executable and in such a case the power under Section 389(1) of the Code could be invoked. The ratio of the judgment can be traced out, which is extracted below:- "In certain situations the order of conviction can be executable, in the sense it may incur a disqualification as in the instant case. In such a case the power under Section 389 (1) of the Code could be invoked. The ratio of the judgment can be traced out, which is extracted below:- "In certain situations the order of conviction can be executable, in the sense it may incur a disqualification as in the instant case. In such a case the power under Section 389 (1) of the Code could be invoked. In such situations the attention of the appellate court must be specifically invited to the consequences which are likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order for reasons to be recorded by it in writing. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate." 9. Again three Hon'ble Judges Bench of the Apex Court in Ravikant S. Patil v. Sarvabhouma S. Bagali reported in (2007) 1 SCC 673 , held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. In the paragraph nos.11 and 12.3 has held as follows:- “11) It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction. (12.3) In K.C. Sareen vs. CBI, Chandigarh, (2001) 6 SCC 584 , it was held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. It was further held that merely because the convicted person files an appeal to challenge his conviction, the court should not suspend the operation of the conviction and the court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. The Bench also noted that the evil of corruption has reached a monstrous dimension. While declining the prayer of the appellant for grant of an order of stay of conviction, the Bench observed that when conviction is on a corruption charge against a public servant, the appellate court should not suspend the order of conviction during the pendency of the appeal, even if the sentence of imprisonment is suspended. The Bench further observed that it would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision. These observations would equally apply when a prayer for stay of order of conviction is made so as to remove the disability to contest an election except, as already noted, in a very exceptional and rare case. 10. A careful reading of the aforesaid judgments of the Apex Court, while recognizing the power to stay conviction or compensation, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences. 10. A careful reading of the aforesaid judgments of the Apex Court, while recognizing the power to stay conviction or compensation, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences. In the present case, the husband of the applicant died, who was the sole earning member of the family and financial condition of the applicant is very weak. The applicant does not have any source of income. Therefore, in such situation, the applicant is not in a position to deposit 20% of compensation amount. Since the appeal of the applicant has been admitted for final hearing and she was released on bail and the applicant is hopeful of succeeding in the appeal, it is justifiable to keep the amount of penalty in abeyance till disposal of appeal. 11. Having regard to the facts and circumstances of the case, the amount of penalty/fine imposed by the Appellate Court vide order dated 24.01.2020 shall be kept in abeyance till the disposal of the appeal. It is further directed that the Appellate Court may decide the appeal, in accordance with law, preferably within a period of four months from the date of production of a certified copy of this order, if there is no other legal impediment. 12. With the aforesaid observations, this application is finally disposed of. 13. It is made clear that any observations made hereinabove, shall not affect the right or claim of any of the parties in the appeal pending before the Appellate Court.