Sunday, 15 November 2015

Whether session court can insist for presence of complainant for hearing of stay application after admitting appeal against conviction in cheque dishonour case?

 Be that as it may, this is a case where the learned Sessions Judge on July 28, 2014
passed an order in connection with Criminal Appeal No. 29/2014 and on that date, the
appeal has been admitted. However, he did not pass any order staying the operation of the
order of sentence and compensation. In all likely, the learned Sessions Judge has
overlooked the provision of sub-Section (2) of Section 357 Cr. P.C. According to the said
provision, if fine is imposed in a case which is subject to an appeal, no such payment shall
be made before the period allowed for presenting the appeal has elapsed, if an appeal be
presented, before the decision of the appeal. Therefore, according to the mandate of law,
since the appeal is admitted, the learned Sessions Judge was bound to stay the realization
of fine. Furthermore, the learned Judge might direct the petitioners to deposit a portion of
the compensation amount in the Trial Court but his approach in non-considering the
question of stay of the order of payment of fine and compensation, unless the complainant
appeared in court, is totally erroneous, improper and not in accordance with law. Judicial
discretion must always be supported by reason and justification and same cannot be
arbitrary and fanciful. When the learned Judge found merits in the appeal and categorically
recorded that there are grounds for admission and admitted the appeal, it is totally unjust
not to consider the question of stay of fine and compensation, more particularly, on the
face of provisions of sub-section 4 of section 357 CrPC. In any event, the learned Judge
should have taken up the matter for consideration of stay of fine and compensation, when
from the postal records, it is found that the complainant was avoiding the court process. 3
 Having regard to above, it is directed within a week from the date of communication
of this order the Appeal court shall dispose of the question of stay of fine and
compensation without insisting presence of the complainant.
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side
Present
The Hon’ble Justice Ashim Kumar Roy
CRR No. 3685 of 2014
Nand Kishore Bhagat @ N. K. Bhagat & Anr.
Versus
Biswakantha Dey & Anr.

Judgment on : 16-01-2015
Citation;2015(3)crimes 623 cal

 The petitioners were convicted under Section 138 of the N.I. Act and sentenced to
pay fine and compensation, by the Trial Court. Against the said order, they preferred an
appeal before the Sessions Court at Barasat. However, the learned Sessions Judge admitted
the appeal but was of the opinion that their prayer for stay of realization of fine and the
payment of compensation shall be considered only after appearance of the
complainant/opposite party.
 It is the case of the petitioners that the notice was duly served upon the
complainant/opposite party, still he was not appearing in the court below. In this regard,
the learned Counsel for the petitioners invited the attention of this court to the order
passed in connection with the said appeal on November 18, 2014. He then pointed out from
the postal track record, at page 41 of this criminal revision, that notice was duly served
upon the complainant/opposite party.
 Aggrieved by the refusal of the learned Sessions Judge to take up the matter for
consideration on the question of stay of the operation of the sentence and the payment of
compensation, the petitioners have now approached this court. 2
 Heard the learned Counsel appearing for the petitioners and considered his
submissions. Perused the materials on record.
 It appears from the affidavit of service that the notice was sent to the opposite
party/complainant at his correct address, as was mentioned in the petition of complaint
but the same could not be delivered to him because he was not available there and in spite
of notice of the postal authority, nobody turned up to take delivery.
 Be that as it may, this is a case where the learned Sessions Judge on July 28, 2014
passed an order in connection with Criminal Appeal No. 29/2014 and on that date, the
appeal has been admitted. However, he did not pass any order staying the operation of the
order of sentence and compensation. In all likely, the learned Sessions Judge has
overlooked the provision of sub-Section (2) of Section 357 Cr. P.C. According to the said
provision, if fine is imposed in a case which is subject to an appeal, no such payment shall
be made before the period allowed for presenting the appeal has elapsed, if an appeal be
presented, before the decision of the appeal. Therefore, according to the mandate of law,
since the appeal is admitted, the learned Sessions Judge was bound to stay the realization
of fine. Furthermore, the learned Judge might direct the petitioners to deposit a portion of
the compensation amount in the Trial Court but his approach in non-considering the
question of stay of the order of payment of fine and compensation, unless the complainant
appeared in court, is totally erroneous, improper and not in accordance with law. Judicial
discretion must always be supported by reason and justification and same cannot be
arbitrary and fanciful. When the learned Judge found merits in the appeal and categorically
recorded that there are grounds for admission and admitted the appeal, it is totally unjust
not to consider the question of stay of fine and compensation, more particularly, on the
face of provisions of sub-section 4 of section 357 CrPC. In any event, the learned Judge
should have taken up the matter for consideration of stay of fine and compensation, when
from the postal records, it is found that the complainant was avoiding the court process. 3
 Having regard to above, it is directed within a week from the date of communication
of this order the Appeal court shall dispose of the question of stay of fine and
compensation without insisting presence of the complainant.
 In the result, this application stands allowed and disposed of.
 This court has been informed that during the pendency of the hearing of the
petitioners’ prayer for stay in connection with the appeal, the trial court has issued
warrant of arrest against him. The said order of issuance of warrant of arrest is quashed.
 Urgent xerox certified copy of this order, if applied for, be given to the parties within
a week from the date of making such application.
 (Ashim Kumar Roy, J.)

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