IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION No. 174 OF 2015
Sau. Archana w/o Pradip Badjate,
State of Maharashtra
CORAM : V .M. DESHPANDE, J.
DATED : 26.08.2015.
Citation: 2016 ALLMR(CRI)4817
Rule made returnable forthwith. Heard finally by consent of parties, in view of the order passed by this Court on 24.2.2015 that the matter was to be decided finally at the stage of admission.
Heard Shri Mahesh Rai, learned counsel for the applicant, learned APP for respondent no. 1 and Shri Anthony, learned counsel for respondent no. 2.
Proceedings for the offence punishable under Section 138 of Negotiable Instruments Act were initiated by respondent no. 2 in the Court of J.M.F.C. at Wardha. The said proceedings were registered as Summary Criminal Case No. 6325/12. The said proceedings were required to be initiated by respondent no. 2 since, according to respondent no. 2, a cheque which was given in favor of respondent no. 2 by the petitioner in discharge of her legal liability for an amount of Rs.4,00,000/- was dishonoured by her banker.
Summary Cri. Case No. 6325/12 was culminated into an order of conviction of the present petitioner by the J.M.F.C. Wardha on 03.1.2015. The learned Magistrate directed that the petitioner shall undergo rigorous imprisonment for three months. The learned Magistrate also directed the petitioner to pay Rs. Four lac to the complainant by way of compensation within a period of two months from the date of judgment, i.e. 03.1.2015.
Being dissatisfied with the said order of conviction and sentence, statutory appeal was preferred by the petitioner before the appellate Court at Wardha. Said appeal was registered as Criminal Appeal No. 13 of 2015. Said appeal is still pending. Along with the appeal, the petitioner had also preferred an application for suspension of substantive jail sentence. The said application is at Ex.5 on the record of appellate Court. The learned Sessions Judge, Wardha, on 03.2.2015 suspended the substantive jail sentence awarded by the trial Court on petitioner’s executing P.R. Bond of Rs.15,000/- with one solvent surety of like amount and on following conditions that – “(i) the appellant-accused shall deposit the compensation amount of Rs.1,00,000/- within three weeks from the date of this order and should go on paying rest of the amount in equal instalments @ Rs.50,000/- each month commencing from the date on or before 1st of March, 2015, before this Court. (ii) he shall regularly attend this Court on the given dates till the appeal is disposed of.”
The petitioner was aggrieved by imposition of condition no.(i). Therefore, she approached this Court by filing the present writ petition.
On 24.2.2015 this Court stayed condition no. (i) in the impugned order dated 03.2.2015 on the condition that the petitioner shall deposit Rs. One lac within a period of two weeks from 24.2.2015.
In compliance with the order dated 24.2.2015, the petitioner has deposited an amount of Rs. One lac before the trial Court. The said statement of such deposit is not controverted by learned counsel for respondent no. 2. Thus, there is no dispute about deposit of Rs. One lac, as directed by this Court and also which was one of the conditions incorporated in the impugned order dated 03.2.2015.
Part of the conditions of deposit of Rs. One lac while suspending the substantive jail sentence is already fulfilled and complied by the petitioner. Section 374 of Code of Criminal Procedure confers right of appeal. The right is absolute one. In that behalf, it would be useful to note the observations of the Hon’ble Apex Court in the case of Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd. anr. reported in 2007 ALL MR (Cri) 1775 (SC). It would be useful to reproduce paragraphs 52 and 53 of the said judgment. They read as under: ” 52. Unfortunately, the Legislature has not made any express provision in this behalf. In absence of any express provision, the question must be considered having regard to the overall object of a statute. We have noticed hereinbefore that Article 21 of the Constitution of India read with section 374 of Cri.P.C. confers a right of appeal. Such a right is an absolute one. In a case where a judgment of conviction has been awarded, the Court can release a person on bail having regard to the nature of offence but as also the other relevant factors including its effect on society. A person upon arrest may have to remain in jail as an under trial prisoner. So would a person upon conviction. A person may also have to remain in jail, in the event he defaults in payment of fine, if he is so directed. But when a direction is issued for payment of compensation, having regard to sub-section (2) of section 357 of the Code, the application thereof should ordinarily be directed to be stayed. It will, therefore, be for the Court to stay the operation of that part of the judgment whereby and whereunder compensation has been directed to be paid, which would necessarily mean that some conditions therefor may also be imposed. A fortiori a part of the amount of compensation may be directed to be deposited, but the same must be a reasonable amount. 53. An order may not be passed which the appellant cannot comply with resulting him being sent to prison. Appellate Court, in such cases, must make an endeavour to strike a balance. Section 421 of the Code of Criminal Procedure may take recourse to, but therefor he cannot be remanded to custody.”
Thus, it is clear that the right in favour of the petitioner under Section 374 of Code of Criminal Procedure is absolute one. The judgment and order of conviction has not reached its finality since its correctness is questioned before the appellate Court. The appeal challenging the conviction filed by the petitioner is still pending. The learned trial Magistrate did not impose any fine upon the petitioner. The question of compensation will come into play only after the conclusion by the appellate Court that the present petitioner is guilty of offence under Section 138 of Negotiable Instruments Act.
The condition imposed upon the appellant who seeks the remedy before the appellate court challenging the order of conviction shall not be onerous. In the present case even before there being a verdict from the appellate Court, the appellate Court has directed to deposit the entire amount which, in my view, will be a onerous condition. By such condition, the right of appeal cannot be defeated inasmuch as if such condition is not fulfilled the petitioner will have to undergo jail sentence.
Petitioner has already shown her bona fides by depositing Rs. One lac. In that view of the matter, in my view, the present writ petition is required to be allowed to the extent of directing the petitioner in depositing Rs.50,000/- in equal installments. It is made clear that Rs. One lac, which is deposited by the petitioner before the appellate Court, shall be invested by the appellate Court so that there will not be loss of interest accrued upon such deposit. Hence, the order directing the petitioner to deposit amount of Rs.50,000/- is hereby quashed and set aside. Rule is made absolute in above terms.