Rajasthan High Court - Jaipur
Suresh Chand Sharma vs State Of Rajasthan Through P.P on 2 November, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B.Criminal Misc. Petition No. 1137/2012 (Suresh Chand Sharma Vs. State of Raj. & anr) Date of Order ::: 02.11.2012 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. Amrit Prasad Sharma for the petitioner. Mr. Laxman Meena, Public Prosecutor. BY THE COURT:
REPORTABLE Heard learned counsel for the petitioner.
The accused-petitioner has preferred this criminal revision petition against the order dated 4.10.2012 passed by the Sessions Judge, Jaipur Metropolitan, Jaipur in Criminal Appeal No.861/2012 whereby the learned appellate Court while suspending the sentence awarded by the trial Court imposed a condition that the petitioner shall deposit 50% of the cheque amount within 15 days in the trial Court.
Brief relevant facts for the disposal of this petition are that on the complaint made by the respondent-complainant after trial the accused-petitioner was convicted by the Additional Chief Judicial Magistrate No.7, Jaipur Metropolitan, Jaipur in Complaint Case No.345/2005 for the offence under Section 138 of the Negotiable Instruments Act and sentenced for rigorous imprisonment for four months and a fine of Rs. 75,000/- vide judgment and order dated 7.9.2012. It was further ordered by the trial Court that in case the amount of fine is deposited by the petitioner, Rs.70,000/- shall be paid to the respondent as compensation. Feeling aggrieved, the petitioner filed aforesaid appeal under Section 374 Cr.P.C. and the same was admitted by the appellate Court vide order dated 4.10.2012. Alongnwith the appeal application under Section 389 Cr.P.C. for suspension of sentence was also filed by the petitioner and the same was allowed by the appellate Court with the condition that the petitioner submits two surety bonds of Rs.10,000/- each and personal bond of Rs.20,000/- to the satisfaction of the trial Court. At the same time, a further condition was also imposed that the petitioner shall deposit 50% of the cheque amount within a period of 15 days in the trial Court. Feeling aggrieved with the condition of deposit of 50% of the cheque amount, the petitioner is before this Court by way of this criminal revision petition.
Assailing the imposition of impugned condition, learned counsel for the petitioner submitted that every accused has statutory and fundamental right to file appeal against a judgment and order of conviction and sentence passed by the trial Court and to seek suspension of sentence awarded by the trial Court and the appellate Court has no jurisdiction to impose any condition while suspending the sentence but in the present case, the learned appellate Court without considering the well settled legal position has illegally imposed the aforesaid condition which infact tantamounts to refusal of suspension of the sentence. It was further submitted that the financial condition of the petitioner is not such that he can fulfill the condition imposed by the trial Court and that will deprive the petitioner to be released on bail during pendeny of the appeal despite the fact that the appellate Court after finding substance in the appeal has admitted the same.
In support of his submissions, learned counsel for the petitioner relied upon the case of Amarveer Singh Vs. State of Rajasthan & Ors. reported in 2010(2) WLC (Raj.) 74. Learned counsel also relied upon order dated 2.4.2010 passed in S.B.Criminal Misc.Petition No.572/2010 (Bhagwati Sahay Katriya Vs. State of Raj. & Anr.).
I have considered the submissions made on behalf of the petitioner and the material made available for my perusal as well as relevant legal provisions and the case law.
On consideration of prevalent legal position in this regard this submission of learned counsel for the petitioner is of no merit that while suspending sentence awarded by the trial Court the appellate Court has no jurisdiction to impose any condition including deposit whole or part of fine or compensation awarded by the trial Court.
In the case of Stanny Felx Pinto Vs. M/s Jangid Builders Pvt. Ltd. & anr. Reported in AIR 2001 (SC) 659, in a case related to conviction under Section 138 of the N.I.Act, Hon'ble Supreme Court held 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 the suspended during the pendency of the appeal. It is to be noted that in the case before Hon'ble Supreme Court, the total amount of fine imposed by the trial Court was Rs. twenty lacs and while ordering suspension of sentence the appellate Court ordered the accused to deposit Rs. Four lacs and in such circumstances, Hon'ble Court refused to interfere finding it a reasonable condition.
In the case of Dilip S.Dahanukar Vs. Kotak Mahindra Co.Ltd. & Anr. Reported in (2007) 6 SCC 528, a similar question was again considered by Hon'ble Apex Court in some detail in a case under Section 138 of the N.I.Act and the substance of the law laid down by Hon'ble Court is that the appellate Court while suspending the sentence including the sentence of fine, is entitled to put the appellant on terms but the same must be reasonable. The Court could direct that a reasonable part of the fine may be deposited. In that case the condition of deposition of amount of Rs. Five lacs was found to be unreasonable and it was reduced to Rs. One lac and further liberty was given to the complainant to withdraw that amount. Thus, it is clear that in this case also Hon'ble Court held that while suspending sentence the appellate Court can impose reasonable condition upon the appellant.
In the case of M.R.Patel vs. M/s R.K.Synthetics & Fibres Pvt.Ltd. Mumbai reported in 2009 Cr.L.J., Hon'ble Single Bench of Karnataka High Court has held that it is permissible for appellate Court to impose any equitable conditions as it thinks just and proper while ordering suspension of sentence awarded by the trial Court. It was further held that imposition of condition for deposit of fine amount or part thereof or payment of compensation to victim is not illegal.
In the case of Mahashwar Dattaraya Kale Vs. Capt. Atul Wasudeo Divekar & Anr. reported in 2006 Crl.L.J.606, in a case under Section 138 of the N.I.Act Hon'ble Sinlge Bench of Bombay High Court also held that imposition of condition by appellate Court to deposit 50% of cheque amount for suspending order directing payment of compensation is proper.
Similarly, in the case of Mohammed Vs. State of Kerala reported in 2006 Cr.L.J.1906, in a case under Section 138 of the N.I.Act Hon'ble Single Bench of Kerala High Court has held that appellate Court was empowered to impose condition for suspension of execution of sentence, while admitting appeal but condition should be reasonable and commensurate with or proportionate with sentence imposed. It was in the discretion of appellate Court to suspend sentence with or without conditions.
In the case of Budha Ram Vs. State of Rajasthan reported in 1978 WLN 624, a Single Bench of this High Court held that whenever suspension of sentence is ordered, it is not necessary for the appellate Court to order suspension of sentence of imprisonment as well as sentence of fine. For reasons to be recorded the appellate Court may not suspend the sentence of fine. It was further held that when the provision is discretionary, the Court may suspend the substantive sentence of imprisonment and may not suspend the sentence of fine and for that it may assign reasons.
So far as the decision of Amarveer Singh Vs. State of Rajasthan & Ors. (supra) as relied by the petitioner is concerned, it was held that The Courts below are not to impose condition of any nature while suspending the sentence/ granting bail to an accused which amounts to be onerous. Such imposition is virtually denial of bail to the accused even though he is entitled for the same, otherwise. Thus, it is clear that in this case also it has not been held that while suspending sentence awarded by the trial Court the appellate Court, has no jurisdiction to impose any condition although at the same time it has been held that the condition imposed must not be onerous. It is to be noted that in the case before the Co-ordinate Bench the cheque amount was Rs.12,50,000/- and the trial Court awarded Rs.15 lacs as compensation to the complainant and while ordering suspension of sentence the appellate Court ordered the accused to deposit 50% of the amount of compensation i.e. Rs.7,50,000/- which was found to be onerous.
So far as the case of Bhagwati Sahay Katriya Vs. State of Rajasthan & Anr. (supra) is concerned the same is based on the case of Amarveer Singh (supra).
The net result of all this discussion is that while suspending sentence under Section 389 Cr.P.C, the appellate Court is entitled to impose condition upon the appellant including condition of deposit of fine/compensation or part thereof but the condition so imposed should not be unreasonable and onerous virtually amounting to refusal of suspension of sentence.
Now, in the facts and circumstances of the present case it is to be considered whether in the present case, the condition imposed by the appellate Court can be said to be unreasonable and onerous. It appears that the amount of cheque was Rs.53,000/- and the trial Court imposed fine of Rs.75,000/- and further ordered that out of this amount, an amount of Rs.70,000/- shall be paid to the complainant as compensation. The appellate Court has ordered that 50% of the cheque amount i.e. Rs.26,500/- shall be deposited by the petitioner in the trial Court. Although, the petitioner claims to be financially weak and not in a position to deposit the aforesaid amount but in support thereof no material has been produced by the petitioner and in absence thereof the claim of the petitioner cannot be accepted. I am of the considered view that looking to the cheque amount and amount of fine awarded by the trial Court, the condition imposed by the appellate Court cannot be said to be unreasonable and onerous.
Consequently, this criminal revision petition being meritless is, hereby, dismissed at the admission stage itself.
In view of the aforesaid order, the stay application does not survive and the same also stands dismissed.
(PRASHANT KUMAR AGARWAL), J teekam All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary