Bombay High Court
Ram S/O. Sundarlal Gujarathi vs Mahavir Nagri Co-Op. Society Ltd. ... on 28 August, 2019
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
1 16 cri wp 1322.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
16 CRIMINAL WRIT PETITION NO.1322 OF 2019
RAM S/O. SUNDARLAL GUJARATHI
VERSUS
MAHAVIR NAGRI CO-OP. SOCIETY LTD. CHOPADA THROUGH SHOBHA
SURESH SAKHALA
...
Advocate for Petitioner : Mrs. Kulkarni Rashmi S
...
CORAM : MANGESH S. PATIL, J.
DATE : 28.08.2019 P.C. :
Heard. Issue notice to the respondent, returnable on 25.09.2019.
2. The learned advocate for the petitioner submits that by the impugned order, the learned Additional Sessions Judge has directed the petitioner to deposit 20% of the cheque amount, however has made it a condition precedent to suspend the sentence imposed upon him for the offences punishable under Section 138 of the Negotiable Instruments Act. Since the cheque is for a huge amount of Rs.1,22,22,899/-, the direction is burdensome.
3. The learned advocate also points out that the impugned order in a way impedes upon the powers of the Appellate Court to suspend the sentence conferred upon it under Section 389 of the Cr.P.C. By virtue of Section 148 of the Negotiable Instruments Act which has been introduced ::: Uploaded on - 28/08/2019 ::: Downloaded on - 29/08/2019 06:47:31 ::: 2 16 cri wp 1322.19.odt by way of recent amendment, the Appellate Court is obliged to direct the accused to deposit the 20% of the amount of fine or compensation. It nowhere makes it obligatory on the part of the Appellate Court to make it a condition precedent for suspending the sentence. The learned advocate submits that since the impugned order has been passed on 17.07.2019 and the petitioner is expected to deposit 20% of the cheque amount within a period of 60 days therefrom, his right to seek suspension of sentence under Section 389 of the Cr.P.C. would become infructuous and even the petition would be rendered useless. Therefore the petitioner may be directed to deposit 5% of the cheque amount and the sentence may be suspended by way of interim relief.
4. Indeed, Section 148 of the N.I.A. Act requires the Appellate Court to call upon the appellant-accused to deposit 20% of the fine/compensation amount and there is no discretion left to the Appellate Court. However, simultaneously one cannot lose sight of the fact that the provision ex facie does not make it imperative that such direction to deposit 20% amount to be made condition precedent for suspending the sentence in exercise of the powers under Section 389 of the Cr.P.C.
5. The impugned order to the extent it directs the petitioner to deposit 20% the money as a condition precedent for suspension of sentence shall stand stayed till the next date.
mub (MANGESH S. PATIL, J.)
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