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2024 DIGILAW 1732 (GUJ)

LAP LIFESTYLE LLP v. STATE OF GUJARAT

2024-08-14

GITA GOPI

body2024
JUDGMENT : 1. Heard Mr. Tejas Barot, learned Senior Advocate assisted by Mr. Daifraz Havewalla, learned advocate for the applicant, Mr. Hardik Mehta, learned APP for the respondent – State and Mr. Bhaumik Dholariya, learned advocate for respondent no.2 who has received instructions to appear in the matter. Let his Vakalatnama be accepted. 2. The revisionists who were accused nos.1 to 6 in Criminal Case no.35380/2021 had challenged the judgment and order of conviction dated 19.4.2024 passed by the learned 18th Additional Chief Judicial Magistrate, Surat before the learned 9th Additional District and Sessions Judge, Surat in Criminal Appeal no.389/2024. While suspending the sentence under Section 389 of the Cr.P.C. for the conviction under Section 138 of the Negotiable Instruments Act, 1881, one of the condition which was laid down was to pay 20% of the fine/compensation amount. The learned Trial Court had ordered fine/compensation amount to be paid as Rs.8,34,89,155/- under Section 352(1) of the Cr.P.C. The order was to pay the amount within a period of two months and in default to undergo two months’ SI. The challenge now is given to the order below application Exh.9 passed by the learned 9th Additional District and Sessions Judge, Surat on 25.7.2024, wherein the applicants as accused have made a prayer for giving set off to the amount which was deposited by the accused at their volition during the course of trial, against the order passed by the learned 9th learned Sessions Judge, Surat below Exh.4 while considering the application of the accused for enlarging on bail noting that the Court had directed the accused to deposit 20% of the amount of fine/compensation within 30 days from the date of the order. 3. Learned Senior Advocate Mr. Tejas Barot with Mr. Havewalla for the revisionists submitted that it was urged before the learned 9th learned Sessions Judge, Surat that the accused had already deposited huge amount more than 20% of the cheque amount on their own volition without any order being passed by the learned Trial Court during the course of trial and thus, a further direction of depositing 20% of the amount would cause tremendous financial hardship to him. Further, it was submitted that during the course of the Criminal Case, properties of the accused had been surrendered to the respondent bank which also bears a huge value and therefore, considering the facts of the case, the accused had asked for the set off of the amount which was already deposited before the learned Trial Court. 3.1 Learned Senior Advocate Mr. Barot submitted that the application Exh.9 came to be rejected and therefore, the present revision has been filed. 3.2 Learned Senior Advocate Mr. Barot submitted that on 17.5.2024, the revisionists had sought permission to place on record the documents regarding payment made to the respondent no.2 bank during the course of trial and when the matter was taken up on board on 17.5.2024, the revisionists produced documents indicating the details of payment made to the respondent no.2 and submitted that about Rs.1,90,00,000/- was paid and further submitted that 20% of the cheque amount comes to about Rs.1,66,97,831/-. Advocate Mr. Barot submitted that the prayer would be justifiable as the revisionists would have the burden of paying the total amount which was ordered and further submitted that the act of depositing the money during the course of trial was also noted by the learned Trial Court Judge in his judgment. 3.3 Advocate Mr. Barot has referred to the judgment in the case of Honnaiah T.H. v. State of Karnataka, 2022 SCC OnLine SC 1001, wherein the Hon'ble Supreme Court has dealt with the ‘interlocutory orders’ and ‘intermediary orders’ by referring to various judgments and thus, Mr. Barot submitted that the order impugned would effect the substantial right of the revisionists since in failure to deposit the money, right of appeal would get frustrated and the revisionists would be sent to jail. 3.4 Mr. Barot has also made reference of judgments in the case of Jamboo Bhandari v. Madhya Pradesh State Industrial Development Corporation Limited & Ors., (2023) 10 SCC 446 and Rakesh Ranjan Shrivastava v. The State of Jharkhand & Anr., (2024) 4 SCC 419 and Surinder Singh Deswal @ Colonel S.S. Deswal & Ors. v. Virender Gandhi, (2019) 11 SCC 341 to submit that the Hon'ble Supreme Court has considered the factors to be noted by the concerned Judge prior to passing the orders of 20% payment of fine/compensation money while suspending the sentence. Advocate Mr. v. Virender Gandhi, (2019) 11 SCC 341 to submit that the Hon'ble Supreme Court has considered the factors to be noted by the concerned Judge prior to passing the orders of 20% payment of fine/compensation money while suspending the sentence. Advocate Mr. Barot submitted that the learned Judge is bound to assign reasons while taking into consideration the defence raised by the accused and has to consider the consequence of the payment of money. 4. Mr. Bhaumik Dholariya, learned advocate for the respondent no.2 bank has referred to the judgment of the High Court of Madras in the case of Bapuji Murugesan v. Mythili Rajagopalan, rendered in Crl.R.C. no.766/19 to submit that the High Court of Madras has dealt with the provision of Section 148 of the NI Act and has considered that the order so passed under the said section is interlocutory order and thus, it was held by the Court that the revision would not be maintainable. 4.1 Referring to the facts of the case, Advocate Mr. Dholariya submitted that the learned Trial Court had considered that the payment of money during the course of trial proceedings was the reason that the compensation amount was not the double of the cheque amount. Advocate Mr. Dholariya submitted that after suspension of the sentence, to the condition of 20% of the amount to be deposited, the revisionists have volunteered below Exh.5 and had given an undertaking by way of purshis to deposit money within 30 days of the order. Such purshis was filed on 15.5.2024 and thereafter suddenly, he took a somersault and moved an application Exh.9 praying for set off. Advocate Mr. Dholariya submitted that he should be estopped from doing so and should be directed to deposit the money since he undertook to do so. Advocate Mr. Dholariya submitted that the amount deposited is already considered by the learned Trial Court in the judgment and thereafter, the operative order had been passed. 4.2 Stressing upon the fact that the complainant is a cooperative bank, Advocate Mr. Dholariya submitted that the public money is involved and the revisionists had availed of loan which they failed to repay and had siphoned off the money and had cheated the bank by giving false promises and thereby, has failed to pay the money. 4.2 Stressing upon the fact that the complainant is a cooperative bank, Advocate Mr. Dholariya submitted that the public money is involved and the revisionists had availed of loan which they failed to repay and had siphoned off the money and had cheated the bank by giving false promises and thereby, has failed to pay the money. These facts are required to be noted while considering that the learned Judge has not granted the permission of set off. 5. In the case of Bapuji Murugesan (supra), it has been observed in Paragraphs 15 and 16 as under:- “15. Applying the tests to the power exercisable under Section 148 of the Negotiable Instruments Act, 1881, as rightly pointed out by the learned Counsel for the respondent, it is not a pre-condition in the appeal to be taken on file and therefore will not result in a final order of deciding the appeal. Applying the test of deciding the rights of the parties, it has been held that it is only a direction to deposit, subject to the final outcome in the appeal and therefore is only a matter of procedure without finally determining the rights of parties. Applying the test as to whether non-passing of such order or accepting of any plea by the accused or the complainant, whether it would result in culmination of proceedings, the answer is again in the negative. Therefore, applying any of the tests advocated by the Hon'ble Supreme Court of India, still the order, which is passed in exercise of power under Section 148 of the Negotiable Instruments Act, is neither a final order nor an intermediate order so as to hold that the revision as against the same is maintainable. 16. Thus, in this context, it is pertinent to state that by the judgment of Kerala High Court in Samuel George, Maliyekkal Bunglow's case (cited supra), it has been held that such powers are in the interlocutory in nature and Revision is not maintainable. Even in a case as instance case where the direction of deposit is made coupling it as a condition for grant of suspension of sentence, this Court had already held in Udaiyar @ Sattaiudaiyar and Anr. Vs. Even in a case as instance case where the direction of deposit is made coupling it as a condition for grant of suspension of sentence, this Court had already held in Udaiyar @ Sattaiudaiyar and Anr. Vs. State [Crl.R.C.(MD).No.126 of 2018] (stated supra) that the order for grant of suspension of sentence or bail are all interlocutory orders and are not revisable under Section 397 of the Code of Criminal Procedure. Therefore, viewing from any angle, I hold that the Revision against the present order is not maintainable.” 6. In the case of Madhu Limaye v. The State of Maharashtra, (1977) 4 SCC 551 , it has been observed as under:- “6. So far as the first question as to the maintainability of the revision at the instance of the complainant is concerned, we think the said argument has only to be noted to be rejected. Under the provisions of the Code of Criminal Procedure, 1973, the court has suo motu power of revision, if that be so, the question of the same being invoked at the instance of an outsider would not make any difference because ultimately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court.” 7. In the case of Honnaiah T.H. (supra), the Hon'ble Supreme Court was dealing with the order of the learned Trial Court declining to mark statement of informant as an exhibit. Against the order of the learned Trial Court, revision was filed and on the ground of maintainability, issue was raised. The High Court observed that the appellant as de-facto complainant has no locus standi to file Revision Application and it was contended that the Trial Court’s order declining to mark the statement of informant as an exhibit is an intermediate order affecting rights of the parties. The objection taken by the defence counsel was that the statement under Section 161 travels to the root of the case of the prosecution and its acceptance would substantially prejudice the case. 8. The objection taken by the defence counsel was that the statement under Section 161 travels to the root of the case of the prosecution and its acceptance would substantially prejudice the case. 8. The Hon'ble Supreme Court observed that the revisional jurisdiction under Section 397 can be exercised where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. The Court can exercise its revisional jurisdiction against the final order of acquittal or conviction or intermediate order not being interlocutory in nature. The Hon'ble Apex Court while dealing with the expression “interlocutory order” noted that the said expression denotes order of purely interim or temporary nature which do not decide or touch upon the important rights and liabilities of the parties. Any order which substantially affects the right of the parties cannot be said to be an “interlocutory order”. The revisional jurisdiction of the High Court is the discretionary jurisdiction that can be exercised by the revisional court suo motu so as to examine the correctness, legality or propriety of an order recorded or passed by the learned Trial Court or inferior court and therefore, there can be no bar on a third party invoking the revisional jurisdiction and inviting the attention of the High Court that has an occasion to exercise the power. 9. Here this Court considers that the order of depositing 20% of the fine/compensation amount would substantially affect the rights of the revisionists since as observed in the case of Jamboo Bhandari (supra) when the accused applies under Section 389 of Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension without any condition and therefore, when a blanket order is sought by the appellant, the Court has to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing condition of deposit of 20% of fine/compensation amount. This order of depositing minimum of 20% of the fine/compensation amount would affect revisionists, as non-compliance of the order would lead to circumstances effecting his right to appeal and further may also subject him to circumstances where his bail order may get cancelled. Thus, a preliminary contention of Advocate Mr. Dholariya of considering the impugned order as ‘interlocutory order’ relying on the judgment of Bapuji Murugesan’s case (supra), cannot be given countenance. Thus, a preliminary contention of Advocate Mr. Dholariya of considering the impugned order as ‘interlocutory order’ relying on the judgment of Bapuji Murugesan’s case (supra), cannot be given countenance. The judgment of High Court of Madras in Bapuji Murugesan’s case (supra) would only have persuasive value while cannot be considered as binding precedent. In Honnaiah T.H. (supra), the Hon'ble Supreme Court has relied upon the judgment of Amarnath v. State of Haryana, (1977) 4 SCC 137 , wherein the Apex Court explained the meaning of the terms ‘interlocutory order’ in Section 397(2) of the Cr.P.C. The Supreme Court held that the expression ‘interlocutory order’ denotes orders of a purely interim or temporary nature which do not decide or touch upon the important rights or liabilities of parties. Hence, any order which substantially affects the rights of the parties cannot be said to be an ‘interlocutory order’. Necessary observation in Amarnath (supra) would help to clarify the concept:- “6. […] It seems to us that the term “interlocutory order” in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.” 10. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.” 10. The learned Judge in the matter at hand while rejecting the order has observed as under:- “The appellants accused have, being aggrieved of the said judgment, preferred the present appeal along with an application exh.4 inter alia praying for suspension of the enforcement of the sentence passed against them. The court has, while considering their application exh.4, imposed condition upon the appellants accused to deposit 20% of the amount of Fine/Compensation, while suspending the enforcement of sentence and releasing them on bail. Thus, considering the nature of the order, the same appears to be specific order against the accused/appellants, while considering their application exh.4. Thus, in view of this court, the acts of the appellants during the course of the trial has nothing to do with the said order and therefore, the same cannot be waived or given set off as prayed for by the appellants and therefore, the application of the appellants accused cannot be allowed.” 11. The revisionists as appellants before the learned Sessions Judge were making a prayer for giving set off towards the condition of 20% as directed to be paid while suspending the sentence, the order which was passed below Section 389 of the Cr.P.C. The order referred does not deal with the merits of the case of both sides to record the reasons for ordering the condition of depositing the minimum of 20% of the compensation/fine amount while the impugned order refusing the set off observes that the acts of appellant to deposit the money during the course of trial has nothing to do with the order which was of suspension of sentence imposing condition of payment of 20% of fine/compensation amount. 12. 12. The Hon'ble Supreme Court has dealt with the difference between Section 143-A and Section 148 of the N.I. Act in the case of Rakesh Ranjan Shrivastava v. The State of Jharkhand & Anr., (2024) 4 SCC 419 , wherein it has been held that though Section 148(1) empowers the Appellate Court to direct the appellant to deposit 20% of the compensation amount only after his conviction, but Section 143-A(1) empowers the Trial Court for passing a drastic order for payment of interim compensation even prior to arriving at guilt of accused. It has been further held that thus if the word “may” in Section 143-A(1), is interpreted as “shall”, it will have drastic consequences as in every complaint under Section 138, the accused will have to pay interim compensation upto 20% of the cheque amount. It has been further held that such an interpretation will be unjust and contrary to the well settled concept of fairness and justice and further if such an interpretation is made, the provision may expose itself to the vice of manifest arbitrariness and further Section 143- A if so interpreted, would fall afoul of Article 14 of the Constitution because in a sense, Section 143-A(1) provides for penalising an accused even before his guilt is established. 12.1 It has been further held that the power under Section 143-A(1) is to direct the payment of interim compensation in a summary trial or a summons case upon the recording of the plea of the accused that he was not guilty and, in other cases, upon framing of charge it was held that the maximum punishment under Section 138 being of imprisonment upto 2 years, in view of clause (w) read with clause (x) of Section 2 CrPC, the cases under Section 138 can be said to be triable as summons cases However, as per Section 143(1), notwithstanding anything contained in CrPC, the Magistrate, shall try the complaint by adopting a summary procedure under Sections 262 to 265 CrPC. However, when at the commencement of the trial or during the course of a summary trial, it appears to the Court that a sentence of imprisonment for a term exceeding one year may have to be passed or for any other reason it is undesirable to try the case summarily, the case shall be tried in the manner provided by CrPC. It was further held that therefore, the complaint under Section 138 becomes a summons case in such a contingency. It was further held that under Section 259 CrPC, subject to what is provided in this section, the Magistrate empowered to convert a summons case into a warrant case. It was further held that only in a warrant case, there is a question of framing charge and therefore, Section 143-A(1)(b) will apply only when the case is being tried as a warrant case. It was further held that in the case of a summary or summons trial, the power under Section 143-A(1) can be exercised after the plea of the accused is recorded. 12.2 It was held that while dealing with application under Section 143-A, the court required to prima facie evaluate merits of case made out by the complainant and merits of the defence pleaded by accused in reply to said application. It was further held that the presumption under Section 139 being rebuttable, by itself no ground to direct the payment of interim compensation and, thus, question of applying the presumption will arise at the trial. It was further held that only if the complainant makes out a prima facie case, a direction can be issued to pay interim compensation and, further, the financial distress of the accused can also be a consideration. It was further held that while granting interim compensation, its quantum must be determined after applying judicial mind and therefore, the court must consider nature of transaction, relationship, if any, between the accused and the complainant and the paying capacity of the accused along with pendency of a civil suit. It was further held that if the defence appears prima facie a plausible defence, the court may exercise discretion in refusing to grant interim compensation. It was further held that while deciding the prayer made under Section 143-A, the Court must record brief reasons indicating consideration of all the relevant factors. It was further held that the cheque in question found amounting to Rs.2,20,00,000/- and that the Trial Court mechanically passed an order of deposit of Rs 10,00,000/- without considering the issue of prima facie case and other relevant factors. It was thus held that the direction held to be exercised by the Trial Court without application of mind and therefore, the Trial Court directed to consider the application for grant of interim compensation afresh. 13. It was thus held that the direction held to be exercised by the Trial Court without application of mind and therefore, the Trial Court directed to consider the application for grant of interim compensation afresh. 13. In the decision of Rakesh Ranjan Shrivastava v. State of Jharkhand and Another, (2024) 4 SCC 419 , the Hon’ble Apex Court had dealt with the provision of Section 148 of the N.I. Act and the power which has been entrusted to the learned Appellate Court. The Hon’ble Apex Court thus held that the ground of interim compensation under Section 143A read with Section 148(1) proviso (w.e.f. 1-9-2018) and Sections 138, 139 and 143(1), for grant of interim compensation under Section 143-A is directory in nature. 13.1 After having considered the submissions and referring to the decision in the case of Surinder Singh Deswal (supra), the Hon’ble Apex Court has summarized the conclusion which is reproduced hereinunder:- “27. Subject to what is held earlier, the main conclusions can be summarised as follows : 27.1. The exercise of power under sub- section (1) of Section 143A is discretionary. The provision is directory and not mandatory. The word “may” used in the provision cannot be construed as “shall.” 27.2. While deciding the prayer made under Section 143-A, the court must record brief reasons indicating consideration of all relevant factors. 27.3. The broad parameters for exercising the discretion under Section 143-A are as follows : 27.3.1. The Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application. The financial distress of the accused can also be a consideration. 27.3.2. A direction to pay interim compensation can be issued, only if the complainant makes out a prima facie case. 27.3.3. If the defence of the accused is found to be prima facie plausible, the Court may exercise discretion in refusing to grant interim compensation. 27.3.4. If the Court concludes that a case is made out to grant interim compensation, it will also have to apply its mind to the quantum of interim compensation to be granted. While doing so, the Court will have to consider several factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant, etc. 27.3.5. While doing so, the Court will have to consider several factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant, etc. 27.3.5. There could be several other relevant factors in the peculiar facts of a given case, which cannot be exhaustively stated. The parameters stated above are not exhaustive.” 13.2 In view of the conclusion of the Hon’ble Apex Court in context of Section 143-A of the N.I. Act, it was observed in discretionary exercise of power, the word “may” used in the provision cannot be considered as “shall” and while deciding the prayer under Section 143-A, the Court must record reasons indicating consideration of all relevant factors. It has been noted that the financial distress of the accused can also be considered while referring to the prima facie merits of the case made out by the complainant and the merits of the defence pleaded by the accused. It has been noted that the direction to pay interim compensation can be issued only if the complainant makes a prima facie case, and if the defence of the accused is found to be plausible, the Court may exercise discretion in refusing to grant interim compensation in all such cases. Thus, an inquiry as directed would be required to decide whether the accused should be ordered to pay interim compensation. 14. Here in the case, the amount deposited by the revisionist before the Trial Court was not under any order of the Court below Section 143-A of N.I. Act. They had on their own free will deposited an amount of Rs.1,90,00,000/-. The learned Appellate Court was not required to enter into the merits of the case, but had to evaluate the merits of both the sides to decide, whether imposition of condition of 20% of the fine/compensation amount was necessary. The learned Judge was therefore required to prima facie enter into the details to decide whether it is an exceptional case, while the order suspending the sentence, imposing condition of 20% deposit of compensation/fine amount reflects no such application of mind. The learned Judge has not assigned any reasons to pass such a condition of 20% deposit of the compensation amount. 15. The learned Judge has not assigned any reasons to pass such a condition of 20% deposit of the compensation amount. 15. In view of the proposition laid down in the referred judgment, it is not mandatory for the learned appellate Court to pass an order of compulsory deposit of 20% of the cheque amount, if the case urged falls as an exception. 16. In the case of Jamboo Bhandari (supra), the case of Surinder Singh Deswal (supra) was taken into consideration, while considering the imposition of condition of 20% payment of fine/compensation money, while passing the order suspending the sentence, wherein observations were referred to. Paragraph-8 of the decision in the case of Surinder Singh Deswal (supra) reads as under :- “8. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the NI Act as amended, the appellate court “may” order the appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial court and the word used is not “shall” and therefore the discretion is vested with the first appellate court has construed it as mandatory, which according to the learned Senior Advocate for the appellants would be contrary to the provisions of Section 148 of the NI Act as amended is concerned, considering the amended Section 148 of the NI Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the NI Act, the word used is “may”, it is generally to be construed as a “rule” or “shall” and not to direct to deposit by the appellate court is an exception for which special reasons are to be assigned. Therefore amended Section 148 of the NI Act confers power upon the appellate court to pass an order pending appeal to direct the appellant-accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application file by the appellant-accused under Section 389 CrPC to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the NI Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the appellant. Therefore, if amended Section 148 of the NI Act is purposively interpreted in Section 148 of the NI Act, but also Section 138 of the NI Act. The Negotiable Instruments Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of the dishonour of cheques. So as to see that due to delay tactics by the unscrupulous drawers of the dishonoured cheques due to easy filing of the appeals and obtaining stay in the proceedings, an injustice was caused to the payee of a dishonoured cheque, who has to spend considerable time and resources in the court proceedings to realise the value of the cheque and having observed that such delay has compromised the sanctity of the cheque transactions. Parliament has thought it fit to amend Section 148 of the NI Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the NI Act and also Section 138 of the NI Act.” 17. In the case of Jamboo Bhandari (supra), after noting the observations in Surinder Singh Deswal (supra), it was observed by the Hon’ble Apex Court in Paragraph 7 as under:- “7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.” 18. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.” 18. The impugned order does not reflect any reasons of the learned Judge to come to the conclusion for exercising discretion as referred to in the cases of Jamboo Bhandari (supra) and Rakesh Ranjan Shrivastava (supra). The learned Appellate Court is required to apply its mind to observe merits of the case while also considering the defence pleaded. Financial distress of the accused is also to be considered as one of the consideration. 19. Here in this case, about Rs.1,90,00,000/- has been deposited before the learned Trial Court, details of which are as under:- 1 Rs.40,00,000/- 14.10.2022 2 Rs.60,00,000/- 14.01.2023 3 Rs.40,00,000/- 28.02.2023 4 Rs.25,00,000/- 14.03.2023 5 Rs.1,72,000/- 18.08.2023 6 Rs.1,13,000/- 18.08.2023 7 Rs.7,52,000/- 18.08.2023 8 Rs.9,26,000/- 18.08.2023 9 Rs.5,40,000/- 29.08.2023 Rs.1,90,03,000/- TOTAL 20. Further the record also suggests that the revisionists by Exh.95 in Criminal Case no.35380 of 2021 had filed a purshis that they were ready to execute the documents in relation to property mortgaged with the bank or in alternatively till 10.3.2023 was ready to pay the cheque amount along with the interest. The said purshis was filed on 13.12.2022. The record also suggests that notice for the sale of the immovable property of the revisionists in the local newspaper “Business Standard” was given on 29.3.2023. 21. Here in this case, the applicants had made a prayer for giving them set off to the condition of making 20% deposit of the fine/compensation amount. The learned Judge was required to note that the order directing 20% of the compensation/fine amount while suspending the sentence was without assigning reasons, thus on that ground, on the basis of the judgment in the case of Jamboo Bhandari (supra) and observing parameters laid down in the case of Rakesh Ranjan Shrivastava (supra) should have given set off as prayed. 22. In the result, the order dated 25.7.2024 passed below application Exh.9 in Criminal Appeal no.389 of 2024 by the learned 9th Additional District and Sessions Judge, Surat is quashed and set aside and the amount deposited before the learned Trial Court may be given set off towards the condition. Accordingly, the present application is allowed in the above terms.