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 done returnable forthwith. Heard finally by agree of parties, in perspective of a sequence upheld by this Court on 24.2.2015 that a matter was to be motionless finally during a theatre of admission.
Heard Shri Mahesh Rai, schooled warn for a applicant, schooled APP for respondent no. 1 and Shri Anthony, schooled warn for respondent no. 2.
Proceedings for a corruption punishable underneath Section 138 of Negotiable Instruments Act were instituted by respondent no. 2 in a Court of J.M.F.C. during Wardha. The pronounced record were purebred as Summary Criminal Case No. 6325/12. The pronounced record were compulsory to be instituted by respondent no. 2 since, according to respondent no. 2, a coupon that was given in preference of respondent no. 2 by a postulant in liberate of her authorised guilt for an volume of Rs.4,00,000/- was humiliated by her banker.
Summary Cri. Case No. 6325/12 was culminated into an sequence of self-assurance of a benefaction postulant by a J.M.F.C. Wardha on 03.1.2015. The schooled Magistrate destined that a postulant shall bear severe seizure for 3 months. The schooled Magistrate also destined a postulant to compensate Rs. Four lac to a complainant by approach of remuneration within a duration of dual months from a date of judgment, i.e. 03.1.2015.
Being discontented with a pronounced sequence of self-assurance and sentence, orthodox seductiveness was elite by a postulant before a appellate Court during Wardha. Said seductiveness was purebred as Criminal Appeal No. 13 of 2015. Said seductiveness is still pending. Along with a appeal, a postulant had also elite an focus for cessation of concrete jail sentence. The pronounced focus is during Ex.5 on a record of appellate Court. The schooled Sessions Judge, Wardha, on 03.2.2015 dangling a concrete jail visualisation awarded by a hearing Court on petitioner’s executing P.R. Bond of Rs.15,000/- with one well-off collateral of like volume and on following conditions that – “(i) a appellant-accused shall deposition a remuneration volume of Rs.1,00,000/- within 3 weeks from a date of this sequence and should go on profitable rest of a volume in equal instalments @ Rs.50,000/- any month commencing from a date on or before 1st of March, 2015, before this Court. (ii) he shall frequently attend this Court on a given dates compartment a seductiveness is likely of.”
The postulant was depressed by deception of condition no.(i). Therefore, she approached this Court by filing a benefaction command petition.
On 24.2.2015 this Court stayed condition no. (i) in a impugned sequence antiquated 03.2.2015 on a condition that a postulant shall deposition Rs. One lac within a duration of dual weeks from 24.2.2015.
In correspondence with a sequence antiquated 24.2.2015, a postulant has deposited an volume of Rs. One lac before a hearing Court. The pronounced matter of such deposition is not controverted by schooled warn for respondent no. 2. Thus, there is no brawl about deposition of Rs. One lac, as destined by this Court and also that was one of a conditions incorporated in a impugned sequence antiquated 03.2.2015.
Part of a conditions of deposition of Rs. One lac while suspending a concrete jail visualisation is already over and complied by a petitioner. Section 374 of Code of Criminal Procedure confers right of appeal. The right is comprehensive one. In that behalf, it would be useful to note a observations of a Hon’ble Apex Court in a box of Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd. anr. reported in 2007 ALL MR (Cri) 1775 (SC). It would be useful to imitate paragraphs 52 and 53 of a pronounced judgment. They review as under: ” 52. Unfortunately, a Legislature has not done any demonstrate sustenance in this behalf. In deficiency of any demonstrate provision, a doubt contingency be deliberate carrying courtesy to a altogether intent of a statute. We have beheld hereinbefore that Article 21 of a Constitution of India review with territory 374 of Cri.P.C. confers a right of appeal. Such a right is an comprehensive one. In a box where a visualisation of self-assurance has been awarded, a Court can recover a chairman on bail carrying courtesy to a inlet of corruption though as also a other applicable factors including a outcome on society. A chairman on detain might have to sojourn in jail as an underneath hearing prisoner. So would a chairman on conviction. A chairman might also have to sojourn in jail, in a eventuality he defaults in remuneration of fine, if he is so directed. But when a instruction is released for remuneration of compensation, carrying courtesy to sub-section (2) of territory 357 of a Code, a focus thereof should usually be destined to be stayed. It will, therefore, be for a Court to stay a operation of that partial of a visualisation whereby and whereunder remuneration has been destined to be paid, that would indispensably meant that some conditions therefor might also be imposed. A fortiori a partial of a volume of remuneration might be destined to be deposited, though a same contingency be a reasonable amount. 53. An sequence might not be upheld that a appellant can't approve with ensuing him being sent to prison. Appellate Court, in such cases, contingency make an attempt to strike a balance. Section 421 of a Code of Criminal Procedure might take chance to, though therefor he can't be remanded to custody.”
Thus, it is transparent that a right in foster of a postulant underneath Section 374 of Code of Criminal Procedure is comprehensive one. The visualisation and sequence of self-assurance has not reached a finality given a exactness is questioned before a appellate Court. The seductiveness severe a self-assurance filed by a postulant is still pending. The schooled hearing Magistrate did not levy any excellent on a petitioner. The doubt of remuneration will come into play usually after a end by a appellate Court that a benefaction postulant is guilty of corruption underneath Section 138 of Negotiable Instruments Act.
The condition imposed on a appellant who seeks a pill before a appellate justice severe a sequence of self-assurance shall not be onerous. In a benefaction box even before there being a outcome from a appellate Court, a appellate Court has destined to deposition a whole volume which, in my view, will be a toilsome condition. By such condition, a right of seductiveness can't be degraded inasmuch as if such condition is not over a postulant will have to bear jail sentence.
Petitioner has already shown her bona fides by depositing Rs. One lac. In that perspective of a matter, in my view, a benefaction command petition is compulsory to be authorised to a border of directing a postulant in depositing Rs.50,000/- in equal installments. It is done transparent that Rs. One lac, that is deposited by a postulant before a appellate Court, shall be invested by a appellate Court so that there will not be detriment of seductiveness accrued on such deposit. Hence, a sequence directing a postulant to deposition volume of Rs.50,000/- is hereby quashed and set aside. Rule is done comprehensive in above terms.