Allahabad High Court
Amit Nigam vs State Of U.P. & Anr. on 3 May, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 06.04.2017 Delivered on 03.05.2017 Case :- U/S 482/378/407 No. - 1142 of 2017 Applicant :- Amit Nigam Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Ashok Kumar, Desh Mitra Anand Counsel for Opposite Party :- Govt. Advocate, Dharmendra Gupta Hon'ble Ravindra Nath Mishra-II,J.
1. This petition under Section 482 Cr.P.C. has been filed for quashing of order dated 24.01.2017 passed by District and Sessions Judge, Lucknow in Criminal Appeal No. 12 of 2017, Amit Nigam Versus State) arising out of judgment and order dated 06.01.2017/07.01.2017 passed in Complaint Case No. 2785 of 2016 (Archana Nigam Versus Amit Nigam) under Section 138/142 Negotiable Instrument Act, whereby Sessions Judge, Lucknow has stayed realization of fine on condition of deposit of Rs. 07 Lacs out of total amount of fine imposed by the Magistrate.
2. Brief facts in the back drop of which this petition under Section 482 Cr.P.C. has been filed are that an Account Payee Cheque of Rs. 04 Lacs issued by applicant in favour of opposite party was dishonored due to insufficiency of money. The cheque amount was not paid by the applicant even after notice given by respondent, therefore, the respondent filed a complaint case in the Court of Magistrate concerned. The applicant was convicted by the Magistrate concerned in above mentioned complaint under Section 138 of Negotiable Instrument Act and he was sentenced to simple imprisonment for a term of two years and fine to the tune of Rs. 14 lacs out of which Rs. 07 lacs was directed to be paid to the complainant-respondent as compensation.
3. An appeal was filed by the applicant against the judgment of conviction and sentence, where pending appeal the applicant was enlarged on bail on 17.01.2017, but as realization of fine was not stayed by the trial Court, the release order was returned on the ground that fine was not deposited. Consequently, the applicant moved an application before appellate Court where realization of fine was stayed on 24.01.2017 subject to condition that applicant deposits Rs. 07 lacs in the Court. Admittedly, the amount of find was not deposited and this petition under Section 482 Cr.P.C. has been filed assailing the order dated 24.01.2011 imposing condition for suspension of sentence.
4. Heard Desh Mitra Anand, learned counsel for applicant and Sri Dharmendra Gupta, learned counsel for respondent no.2 and learned Additional Government Advocate for State.
5. The contention of applicant is that the order dated 24.1.2017 is against the statutory provision of law. The realization of fine ought to have been stayed by the appellate Court during the pendency of appeal, especially when bail is granted to him. He has argued that if applicant is compelled to deposit the amount of fine, the appeal would be a futile exercise, which is a clear cut abuse of process of the law and process of the Court. According to learned Counsel for the applicant it was unjust on the part of appellate Court to have directed applicant to deposit huge amount of Rs. 7 Lacs as condition for suspension of substantive sentence which is unreasonable, unjust and onerous.
6. Per contra, learned counsel for the respondent has contented that apart from sentence of imprisonment, fine was also imposed by the trial Court and in default of payment of fine two months imprisonment was also passed. Admittedly, the amount of fine was not deposited by the applicant, therefore, he has been rightly detained in custody for non-payment of fine. The appellate Court was well within its power to impose condition for suspension of sentence.
7. Before embarking upon rival contentions raised by parties, it would be appropriate to have a view of the relevant provisions of Criminal Procedure Code (hereinafter referred to as "Code for brevity sake") Section 357: Order to pay compensation.
"(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section."
Section 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. As per provisions of Section 357 Cr.P.C., Court may imposed a sentence of fine simplicitor or a sentence where it forms part thereof. Where Court imposes a sentence of fine as a part of substantive sentence, Court is entitled to direct that whole or any part of the fine recovered to be applied in respect of the factors enumerated in clauses (1), (b), (c) or (d). In the present case, fine has been awarded by appellate Court as a part of substantive sentence and there is direction by the appellate Court to apply part of the amount of fine to be applied for payment of compensation as enumerated in clauses (a) to (d) of Section 357 (1) of the Code.
9. With regard to condition of deposit of 50 % for fine amount, as imposed in present case for suspending substantive sentence, Hon'ble Apex Court in Stanny Felix Pinto Vs. Jangid Builders Pvt. Ltd. and another (2001) 2 SCC 416 has observed as under:
"We find that while suspending the sentence for the offence under Section 138 of the Negotiable Instrument 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 the remitted as the convicted person wants the sentence to be suspended during the pendency of the appeal."
10. The above decision of Stanny Felix Pinto (supra) was followed by Hon'ble Apex Court in Dilip S. Dahanukar Vs. Kotak Mahindra Company Limited and another (2007) 6 SCC 528 wherein it has been held that not only amount of compensation must be reasonable, but condition for suspending sentence should also be reasonable. In paras 38 and 39 Court has observed as under:
"38.........The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned;the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-Section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge."
39..............If a fine is to be imposed under the Act, the amount of which in the opinion of the Parliament would be more than sufficient to compensate the complainant; can it be said, that an unreasonable amount should be directed to be paid by the Court while exercising its power under sub-Section (3) of Section 357? The answer thereto must be rendered in the negative. Sub-Section (5) of Section 357 also provides for some guidelines. Ordinarily, it should be lesser than the amount which can be granted by a Civil Court upon appreciation of the evidence brought before it for losses which might have reasonably been suffered by the plaintiff. Jurisdiction of the Civil Court, in this behalf, for realization of the amount in question must also be borne in mind. A criminal case is not a substitution for a civil suit, far less execution of a decree which may be passed."
11. In Dilip S. Dahanukar (supra), Hon'ble Apex Court has further concluded in following terms:
"i) In a case of this nature, Sub-section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation;
ii) The Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right;
iii) The amount of compensation must be a reasonable sum;
iv) The Court, while fixing such amount, must have regard to all relevant factors including the one referred to in Sub-section (5) of 357 of the Code of Criminal Procedure;
v) No unreasonable amount of compensation can be directed to be paid."
12. Section 389 Cr.P.C. provides for suspension of sentence pending the appeal. The very heading of Section 389 Cr.P.C., states that: "suspension of sentence pending the appeal; release of appellant on bail." It empowers the appellate Court to suspend the execution of sentence or order appealed against and also if appellant is in confinement that be released on bail.
13. Now question arises that when appeal is admitted for hearing and the substantive sentence of the appellant is ordered to be suspended then imposition of condition of payment of amount, out of fine for compensation is justified? The imposition of condition of payment of even part of the amount of fine may deprive of hearing of appeal and the appellant may have to undergo sentence if he is not in a position to make payment of said amount, although ultimately he may be acquitted. Thus poverty of appellant-accused comes in the way of hearing of appeal or suspension of sentence.
14. Hon'ble Supreme Court in the case of Gudikanti Narasimhulu and others Versus Pubic Prosecutor, High Court of Andhra Pradesh, AIR 1978 SC 429 had observed that:
"Bail or Jial?" at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion."
Further Hon'ble Court observed:
"personal liberty, deprived when bail is refused is too precious a value of our constitutional system recognized under Article 21 of the Constitution that the crucial power to negate is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individuals and the community."
15. In Keshab Narayan Banerjee and another Versus State of Bihar, AIR 1985 SC 1666, Hon'ble Supreme Court has held that :
" The condition imposed by the High Court for enlarging appellant no.1 on bail, namely that he should furnish security for rupees one lakh in cash or in fixed deposit of any nationalised bank in Bihar with two local sureties residing in State of Bihar each to a like amount appears excessively onerous and in the circumstances of this case, it virtually amounts to denial of bail itself.
16. Similarly, in the case of Sheikh Ayub Vs. State of M.P. (2004) 13 SCC 457, the condition for furnishing surety bond of Rs. 50,000/- and direction to deposit Rs. 2,50,000/- alleged to be the amount misappropriate by the accused was also held to be onerous and amounting to denial of bail.
17. The ratio of above judgments is that the appellate Court may impose condition while suspending the sentence and that the power of imposing conditions is discretionary. There is no impediment to put the applicant on terms, while suspending the sentence, like depositing fine in the Court, but the amount of such condition must be reasonable having regard to the entire factors applicable in the case.
18. In the present case, applicant-accused has been convicted under Section 138 of Negotiable Instrument Act, in which he would be ordinarily granted bail during trial, in view of the fact that the offence is bailable. The applicant had remained on bail throughout the trial, therefore, while exercising appellate powers a person should not be made to suffer imprisonment only because the conditions imposed for suspending the sentence are onerous. In the present case, though petitioner has been enlarged on bail during pendency of appeal, yet condition for depositing of Rs. 7 lacs has been imposed by appellate Court for suspension of sentence which appears to be onerous and harsh. As has been seen above, condition of any nature while suspending the sentence/granting bail to an accused should not be imposed which amounts to onerous. Such condition virtually amounts to denial of bail to the accused, who was otherwise entitled for the same.
19. In view of the above discussion the condition to deposit Rs. 7 lacs for suspension of the sentence being onerous and harsh, the order dated 24.01.2017 imposing condition for suspension of the sentence pending appeal is liable to be modified to the extent of only 10 % of the amount imposed by the trial Court.
20. In the result, the petition under Section 482 Cr.P.C. filed by the applicant is partly allowed with modification to deposit only 10 percent of the amount imposed by the trial Court. Impugned order is accordingly modified.
Order Date :- 03.05.2017 Arvind