Whereas so far as releasing the accused
on bail is concerned, now accused – petitioner
has to apply for bail as per the provisions of
section 389 of the Code and thereupon provisions
of the Criminal Procedure Code pertaining to bail
would apply which empower the Court to impose
such other conditions as it considers necessary,
more particularly now when such appellant is not
simply accused but is a convict; thereby there is
something more than prima-facie evidence against
him. In simple words, before conviction, the
prima-facie evidence is yet to be proved by the
complainant; whereas after conviction, it is to
be considered that there is evidence against the
convict to award him conviction. But only because
there is provision to file an appeal, it cannot
be said that such person is in the same condition
as an accused before the trial Court. In view of
such fact, if the appellate Court deems it fit to
impose certain conditions so as to ultimately
decide the appeal at the earliest by reducing the
imprisonment against payment of more fine which
may be utilized for payment to the victim as
compensation so as to redress his grievance which
may result into physical freedom in favour of the
accused i.e., not to undergo imprisonment, it
cannot be said that the Court has no jurisdiction
to do so. Constitutional and statutory right to
file appeal does not confirm absolute right to be
released on bail, which is quite a discretionary
in nature and there cannot be any straight jacket
formula or rule of thumb that all accused of all
convictions should be released on bail as and
when appeal is filed, irrespective of different
consideration in different type of cases so also
nature and character of the convict. As hardcore
criminals or convicts of heinous crimes are not
released on bail, even a convict under NI Act may
be required to be released on bail or there may
be strict conditions for bail considering modus
operandi and attitude to take disadvantage of any
situation.
Therefore, what is to be seen by the
appellate Court at the time of admitting the
appeals and releasing the accused on bail, is
quite obvious that whether filing of appeals is
genuine or only with a view to prolong the time
and thereby to delay the execution of order of
conviction. Therefore, in such cases, if
appellate Court deems it fit to impose condition
to deposit certain amount, it cannot be said that
such condition is illegal.
24 So far as harshness of such condition is
concerned, it is always subjective, but inasmuch
as, as already discussed earlier, it would depend
upon the amount of cheques in question and,
therefore, it cannot be said that a direction to
deposit Rs.30 lacs in all i.e. aggregate for all
four appeals, is harsh because disputed amount of
cheques is Rs.1 crore. Therefore, practically
even the impugned order cannot be considered as a
harsh order so as to enable the petitioner to be
released on bail because even after depositing
30% amount of the cheques, he is enjoying benefit
of 70% of the amount of the cheques or amount in
dispute. However, at the most the petitioner may
be entitled to some instalments for making such
payment so as to make him convenient to deposit
such amount.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 333 of 2016
RAJNIKANT NATHALAL MANIAR
Versus
JAGDISH JASVANTLAL PATWA & 1.
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 05/07/2016
2 All these revision applications are
between the same parties and though arising out
of different impugned orders in different
appeals, practically in all the matters, similar
law point is involved and, therefore, though the
petitioner has to prefer four separate revision
applications because of four separate impugned
orders in four separate Criminal Appeals arising
out of four separate Criminal Cases, they are
heard together and are decided by this common
judgment. Even parties have also submitted only
one set of arguments in all such matters.
3 Therefore, four revision applications
are decided by this common judgment. Hence
Registry shall keep copy of this judgment in all
the matters.
4 The petitioner in all the revision
applications is facing an order of conviction
under the Negotiable Instruments Act [for short
‘NI Act’] in all such revision applications,
because the petitioner has issued four different
cheques in favour of the respondent – complainant
and, therefore, when all such cheques were
bounced and remained unpaid by the petitioner’s
bank, the complainant has filed complaint under
section 138 of the NI Act before the Court of
Metropolitan Magistrate, Ahmedabad. Such Court
has by impugned order dated 29/3/2016, after
full-fledged trial, convicted the present
petitioner and awarded sentence of simple
imprisonment [SI] for one year with fine of
Rs.5,000/- and in default of payment of fine,
further SI for two months.
5 The petitioner has challenged such
conviction by filing respective appeals before
the City Sessions Court at Ahmedabad. With such
appeals, the petitioner has also filed
applications for bail.
6 However, while granting the bail by its
order dated 26/4/2016, the City Sessions Court
has imposed a condition that the petitioner
should be released on bail till hearing and final
disposal of such Criminal Appeal on depositing
Rs.7,50,000/- before the trial Court and on
executing personal bond of Rs.20,000/- with a
surety of like amount to the satisfaction of the
trial Court, with some regular conditions like
marking presence before the Court on every date
of hearing, not to leave local limits of Gujarat
without prior permission of the Court, not to
misuse his liberty, etc.
7 Being aggrieved by such conditional
order of bail, the petitioner has challenged such
order dated 26/4/2016 by filing present revision
applications.
8 The sum and substance of arguments of
the learned advocate for the petitioner is to the
effect that filing of an appeal by the accused
person is his constitutional and legal right and,
therefore, when right to appeal is provided in
the statute, the petitioner is also entitled to
be released on bail. Therefore, such order of
bail should not be conditional one as purported
in the impugned judgment and same needs to be
quashed and set aside.
9 In support of his such submission,
learned advocate for the petitioner is mainly
relying upon the decision of the Hon’ble Supreme
Court rendered in the case of Dilip S Dahanukar
v. Kotak Mahendra Company Ltd. Reported in [2007]
6 SCC 528 and other judgments referred in such
citation.
10 If we peruse such decision, it becomes
clear that practically the Hon’ble Supreme Court
has discussed so many judgments and other details
mainly for interpretation of section 357 of the
Criminal Procedure Code, 1973 [for short ‘the
Code’] vis-a-vis the provisions of NI Act with
reference to the power to impose fine, but with
due respect to the decision of the Hon’ble
Supreme Court, it is to be recollected here that
the provisions of section 357 of the Code is
mainly with reference to the powers of the Court
to order to pay compensation and not with regard
to imposition of fine. Generally the powers to
impose fine for the offences under the Indian
Penal Code [IPC] are conferred in the Penal Code
itself. Similarly, under section 138 of the NI
Act, there is a provision to impose fine which
can be upto double the amount of the cheque in
question as against different specific amount of
fine for different offences in other enactments
including IPC. Therefore, the powers of the Court
in imposing fine under section 138 of the NI Act
is altogether different and unlimited, but
restricted to the amount of cheque, which can be
different in different cases. Therefore, if the
amount of cheque for which complaint under
section 138 of the NI Act is filed and proved is
Rs.100/-, then the Court has power to impose fine
of Rs.200/-. But if the amount of cheque in such
complaint is of any higher amount, say Rs.1
crore, then the Court has power to impose fine of
Rs.2 crores. Therefore, imposition of any amount
as fine under the NI Act cannot be termed as
harsh based upon the actual figure in such
condition because it would vary from case to case
and in a given case, it may be much more, but it
cannot be said that only because of direction to
deposit huge amount, it amounts to harsh
condition so as to refuse bail to the convict
pending appeal and, therefore, order of bail
should not contain such condition.
11 To be more precise, let us examine the
wording of section 138 of the NI Act, wherein the
relevant portion reads thus :
“..... Such person shall be deemed to have
committed an offence and therefore, without
prejudice to any other provisions of this
Act, be punished with imprisonment for a term
which may extend to two years, or with fine
which may extent twice the amount of cheque
or with both;”
Whereas section 357 of the Code of Criminal
Procedure provides for order to pay compensation;
to be paid to the victim from the amount of fine
that may be imposed upon the accused. But subsection
[3] of section 357 specifically provides
that when a Court imposes sentence, which does
not include fine as a part of it, the Court may,
by way of compensation, order the accused to pay
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. However, such order to pay
compensation can be passed at the time of passing
the judgment of the appeal because pursuant to
sub-section [2] of section 357, if fine is
imposed in a case which is subject to appeal,
though compensation can be paid to the victim
from the amount of such fine, no such payment
shall be made before the period allowed for
presenting the appeal, has been elapsed or before
the decision of the appeal.
12 Whereas sub-section [4] of section 357
of the Code entitles the High Court or Sessions
Court to pass any such order even while
exercising its power of revision. Therefore, one
thing is clear and certain that irrespective of
imposition of fine or imposition of meagre amount
as a fine in an order of conviction by the trial
Court, the High Court and Sessions Court can
award the compensation which may be only with a
rider that payment of which can be made to the
victim only at the time of deciding the appeal.
13 Whereas so far as releasing the accused
on bail is concerned, now accused – petitioner
has to apply for bail as per the provisions of
section 389 of the Code and thereupon provisions
of the Criminal Procedure Code pertaining to bail
would apply which empower the Court to impose
such other conditions as it considers necessary,
more particularly now when such appellant is not
simply accused but is a convict; thereby there is
something more than prima-facie evidence against
him. In simple words, before conviction, the
prima-facie evidence is yet to be proved by the
complainant; whereas after conviction, it is to
be considered that there is evidence against the
convict to award him conviction. But only because
there is provision to file an appeal, it cannot
be said that such person is in the same condition
as an accused before the trial Court. In view of
such fact, if the appellate Court deems it fit to
impose certain conditions so as to ultimately
decide the appeal at the earliest by reducing the
imprisonment against payment of more fine which
may be utilized for payment to the victim as
compensation so as to redress his grievance which
may result into physical freedom in favour of the
accused i.e., not to undergo imprisonment, it
cannot be said that the Court has no jurisdiction
to do so. Constitutional and statutory right to
file appeal does not confirm absolute right to be
released on bail, which is quite a discretionary
in nature and there cannot be any straight jacket
formula or rule of thumb that all accused of all
convictions should be released on bail as and
when appeal is filed, irrespective of different
consideration in different type of cases so also
nature and character of the convict. As hardcore
criminals or convicts of heinous crimes are not
released on bail, even a convict under NI Act may
be required to be released on bail or there may
be strict conditions for bail considering modus
operandi and attitude to take disadvantage of any
situation.
14 In addition to above position of law, if
we peruse the judgment under reference in detail,
it becomes clear that even in such reported case,
after discussing several judgments, which are now
not required to be discussed herein as suggested
by the petitioner, practically the Hon’ble
Supreme Court has also concluded and ordered the
accused before it to deposit a sum of Rs.1 lac
within a period of four weeks from the date of
such order and the Hon’ble Supreme Court has
gone to the extent of even allowing to withdraw
such amount by the respondent – complainant.
Whereas factually, in such reported case, the
trial Court has imposed fine of Rs.25,000/- only
on the company, but Chairman of the company was
directed to pay compensation of Rs.15 lacs in
addition to imposition of SI for one month. While
in appeal against such order, the appellate Court
suspended the sentence subject to deposit of Rs.5
lacs while admitting the appeal of the accused –
Chairman. However, ultimately the Hon’ble
Supreme Court has held that while suspending the
sentence even the appellate Court is entitled to
put appellant on terms and also observed that no
such term could be put as a condition precedent
for entertaining an appeal which is a
constitutional and statutory right. Therefore,
what is held by the Hon’ble Supreme Court is
regarding the rights of the accused to file an
appeal, but not with regard to releasing him on
bail in such appeal. The verdict of the Hon’ble
Supreme Court needs to be recollected in its own
words, which read thus :
“Thus while exercising the appellate power,
ordinarily a person should not suffer
imprisonment only because the conditions
imposed for suspending the sentence are
harsh.”
15 Therefore, practically what is decided
by the Hon’ble Supreme Court in this reported
judgment is to the above effect only and
discussion of other judgments on other issues is
practically to arrive at such conclusion only
and, therefore, those discussions cannot be
treated and considered as ratio decidendi or
determination by the Hon’ble Supreme Court so as
to rely upon it while deciding any such issue.
16 The petitioner is also relying upon a
decision rendered by the Ld. Single Judge of this
High Court in Special Criminal Application No.
3989/2014 between Dhruvaben Bhaveshkumar Mehta v.
Mahindra and Mahindra Financial Services Ltd.,
wherein mainly relying upon the decision of Dilip
S Dahanukar [supra], it was held in following
terms :
“In view of the aforesaid provisions, it is
clear that the appellate Court is having
power to suspend the sentence pending the
appeal, and thereby to release the convict
person on bail. However, while releasing
convict person on bail, a condition which is
harsh cannot be imposed.”
Therefore, though the Ld. Single Judge has
quashed and set aside the condition to deposit
25% of the cheque amount in such case, the
verdict of the Court does not confirm that there
cannot be any such condition when it is
specifically decided that while releasing the
convict person on bail, a harsh condition cannot
be imposed. Therefore, only because of two
judgments which practically confirm that there
can be condition, but it should not be harsh, it
becomes clear that the petitioner has
misconstrued both such judgments in his favour.
17 Before coming to the factual details and
to consider that whether condition imposed in the
present case is harsh or not and in that case,
how to make it liberal i.e. how to make the
petitioner comfortable in order to abide by such
condition, reference to some other judgments is
necessary, which confirms such view.
18 The respondent is relying upon the
decision between Bhagwati Developers v. State of
Gujarat reported in [2013] 5 GLR 3730, wherein
the Ld. Single Judge has considered almost
similar situation which is emerging in the
present case and held that while suspending the
sentence in exercise of powers under section 389
of the Code, the appellate Court can impose such
condition, more particularly, when the accused
has been convicted under section 138 of the NI
Act. Under the circumstances, it is held that no
illegality has been committed by the appellate
Court while passing the impugned order directing
to deposit 25% of the cheque amount, while
suspending the sentence imposed by the trial
Court in exercise of powers under section 389 of
the Code. Therefore, it cannot be said that the
appellate Court cannot impose appropriate
conditions while releasing the accused on bail.
For arriving at such conclusion, the Ld. Single
Judge has relied upon judgment rendered in the
case of Sanjay Chandra v. CBI reported in [2012]
1 SCC 40, wherein also the Hon’ble Supreme Court
has imposed a condition of depositing 25% of the
cheque amount while releasing the applicant on
bail. Therefore, when the offence involved in the
case is with reference to some amount either by
cheating or by scam or under section 138 of the
NI Act, generally it would be necessary and
appropriate to impose a condition upon the
accused to deposit, if not full amount, then
substantial amount or at-least some reasonable
amount to show his bonafide, with the filing of
appeal or revision though it is by way of right,
so as to confirm that it is not preferred only
with a view to delay the process whereby
otherside has to suffer a loss.
19 It cannot be ignored that the provision
of section 138 of the NI Act is practically for
speedy trial of a dispute between the parties
where practically there is no defence available
with the person who has misused the negotiable
instrument.
20 It is quite obvious that the mercantile
community makes frequent use of negotiable
instruments which are the backbone of the entire
commercial world. The issuance of negotiable
instrument carries with it certain underlying
presumptions and expectations that the same would
be honoured on its due date. Therefore, if
transactions and litigation based upon such NI
Act are not completed in time, then entire
financial circle gets upset. The provisions of
Chapter XVIII in Part 3 of the NI Act are
practically added with such purpose to see that
there may not be misuse of negotiable instrument
and further to see that litigation based upon
negotiable instrument, more particularly cheque,
which is nothing but promise to pay the amount,
cannot be dragged into the Civil Court for years
together.
21 In addition to such position, if we
peruse the decision of the Delhi High Court in
the case of Om Prakash Bajaj v. Som Dutt Bajaj
dated 2/2/2009 in Criminal Misc. Case No.
2245/2008, it becomes clear that the Delhi High
Court has even after considering the decision of
the Hon’ble Supreme Court in the case of Dilip S
Dahanukar [supra] observed and held as under :
“14. The said order of the Trial Court
was challenged before the Appellate Court and
while admitting the appeal, the Appellate
Court gave directions to the appellant
company to deposit a sum of Rs.5 lacs each in
place of compensation of Rs.15 lacs awarded
by the learned Trial Court. The writ petition
was filed by the company questioning the
liability of the order of the Appellate
Authority, but without any success whereafter
the matter came before the Apex Court for
consideration. It would be thus noticed in
the facts before the Apex Court clear
directions were given in the order of
sentence to pay a compensation under Section
357(3) Cr.P.C., while in the facts of the
present case compensation has been directed
by the Trial Court based on the amount of
dishonoured cheque of Rs. 4 lakhs, fine of
which could be imposed by the Trial Court to
twice the amount of the cheque, but in place
of the double of the amount directions were
given for the payment of an amount of Rs. 7
lakhs to the appellant. This order under no
circumstances can be considered to have been
passed by the Trial Court under Section
357(3) Cr.P.C. but same in fact has been
passed deriving the mandate from Section 138
of the Negotiable Instruments Act. Even in
the absence of Dilip S. Dahanukar (Supra)
case where Trial Court gave directions for
the payment of compensation amount, the Apex
Court has not placed any fetters on the power
of the Appellate Court but merely put the
appellant to reasonable terms while
suspending his sentence. Relevant para 73 of
the said judgment in this regard is referred
as under:-
“73. We, therefore, are of the opinion:
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.”
15. Based on the said conclusions the
Apex Court found it reasonable to give
directions to the appellant in the said
case to deposit a sum of Rs. 1 lakh in place
of Rs.15 lakhs directed by the Trial Court
and Rs. 5 lakh directed by the Appellate
Court. It would be thus manifest that the
appellate Court although cannot impose any
term as a condition precedent for
entertaining an appeal against the order of
the conviction, the same being a
constitutional and statutory right, but at
the time of passing an order for suspension
of sentence under Section 389 Cr. P.C.
the appellant approaching the Court
seeking suspension of his sentence can be
put to reasonable terms depending upon the
facts of a given case.
16. In view of the foregoing, the judgment of
the Apex Court entitled Dalip S. Dahanukar
(Supra) does not apply to facts of the case.
It is no more res integra that the
observations of the courts cannot be read as
Euclid’s Theorem and that too taken out of
its context. Courts should not place reliance
on decisions without discussing as to how the
factual situation fits in with the fact
situation of the decision on which reliance
is placed. In this regard, the Hon’ble Apex
Court in Union of India Vs. Amrit Lal
Manchanda – (2004) 3 SCC 75 observed as
under:-
15. Cases involving challenges to orders
of detention before and after execution of
the order stand on different footings. Courts
should not place reliance on decisions
without discussing as to how factual
situation fits in with the fact situation
of the decision on which reliance is
placed. Observations of courts are
neither to be read as Euclid’s
theorems nor as provisions of the
statute and that too taken out of their
context. These observations must be read in
the context in which they appear to have
been stated. Judgments of courts are not
to be construed as statutes. To
interpret words, phrases and provisions of a
statute, it may become necessary for
judges to embark into lengthy discussions
but the discussion is meant to explain and
not to define. Judges interpret statutes,
they do not interpret judgments. They
interpret words of statutes; their words
are not to be interpreted as statutes. In
London Graving Dock Co. Ltd. v. Horton
(AC at p. 761) Lord Macdermott observed:
(All ER p. 14 C-D)
“The matter cannot, of course, be
settled merely by treating the ipsissima
verba of Willes, J., as though they were
part of an Act of Parliament and applying
the rules of interpretation appropriate
thereto. This is not to detract from the
great weight to be given to the language
actually used by that most distinguished
Judge….”
16. In Home Office v. Dorset Yacht Co.8
Lord Reid said (at All ER p. 297g-h), “Lord
Atkin’s speech ... is not to be treated as if
it were a statutory definition. It will
require qualification in new circumstances.”
Megarry, J. in (1971) 1 WLR 1062 observed:
“One must not, of course, construe even a
reserved judgment of even Russell, L.J. as if
it were an Act of Parliament.” And, in
Herrington v. British Railways Board9 Lord
Morris said: (All ER p. 761c)
There is always peril in treating the
words of a speech or judgment as though they
are words in a legislative enactment, and it
is to be remembered that judicial utterances
are made in the setting of the facts of a
particular case.
17. Circumstantial flexibility, one
additional or different fact may make a world
of difference between conclusions in two
cases. Disposal of cases by blindly placing
reliance on a decision is not proper.”
Therefore, the ratio decidendi as per above
referred judgments is to the effect that it is
reasonable to impose condition at the time of
passing order for suspension of sentence, whereas
pursuant to the observations made in the case of
Dilip S Dahanukar [supra] at the most Court has
to see that such condition should not be so harsh
that the petitioner may not be released on bail
at all for non-compliance of such condition. But
except that, it cannot be said that no condition
whatsoever can be imposed and that imposition of
condition is not illegal.
22 The decisions of the Bombay High Court
in the cases of [1] Mohmad Hafiz Khan v. Anand
Finance rendered in Criminal Revision Application
No. 119/2003 dated 23/7/2003 and Ajay v.
Laxmikant Trading Co. Pvt. Ltd., in Cri. Writ
Petition No. 625/2015 dated 21/9/2015 would be
relevant to be recollected here wherein the
Bombay High Court has while confirming the
imposition of condition at the time of granting
bail, taken a stand to give reasonable relief to
the petitioner – accused to deposit the amount
i.e. by way of instalments so as to avoid
allegation that such condition is harsh.
23 In addition to above issues on law
point, wherein now as per the above discussion,
when there is no substance in such submission by
the petitioner, if we peruse the factual details,
though minute discussion and determination on
factual details may not be warranted at this
stage so as to avoid prejudice on pending
appeals, at least basic information needs to be
recollected here. It is admitted position that
present petitioner has obtained possession of
property occupied by the complainant against some
MoU and commitments and when such MoU and
commitments could not be fulfilled by him, the
petitioner has agreed to pay an amount of
Rs.1,77,00,000/- to the complainant and issued
different cheques for such payment. It is also
undisputed fact that out of total cheques issued
by the petitioner, six cheques were honoured by
the bank of the petitioner and thereby petitioner
has paid Rs.77,00,000/-, but thereafter
petitioner has to pay remaining amount of Rs.1
crore for which the petitioner has exchanged the
previous cheques with the cheques which are
subject matter of present litigations. Therefore,
when such remaining cheques were not honoured by
the petitioner’s banker, the complainant has
initiated such proceedings. Thereby, prima-facie
it becomes clear that probably there is no
defence available with the petitioner when there
is commitment to make certain payment in writing
and when the petitioner has issued several
cheques to fulfill such commitments and when out
of said cheques, few cheques were already
honoured. Therefore, what is to be seen by the
appellate Court at the time of admitting the
appeals and releasing the accused on bail, is
quite obvious that whether filing of appeals is
genuine or only with a view to prolong the time
and thereby to delay the execution of order of
conviction. Therefore, in such cases, if
appellate Court deems it fit to impose condition
to deposit certain amount, it cannot be said that
such condition is illegal.
24 So far as harshness of such condition is
concerned, it is always subjective, but inasmuch
as, as already discussed earlier, it would depend
upon the amount of cheques in question and,
therefore, it cannot be said that a direction to
deposit Rs.30 lacs in all i.e. aggregate for all
four appeals, is harsh because disputed amount of
cheques is Rs.1 crore. Therefore, practically
even the impugned order cannot be considered as a
harsh order so as to enable the petitioner to be
released on bail because even after depositing
30% amount of the cheques, he is enjoying benefit
of 70% of the amount of the cheques or amount in
dispute. However, at the most the petitioner may
be entitled to some instalments for making such
payment so as to make him convenient to deposit
such amount.
25 The Appellate Court has given direction
for suspension of sentence as awarded by the
Trial Court, subject to the appellant depositing
a sum of equal to 30% of the amount of cheque
being Rs.7,50,000/- in each appeal and released
on bail on executing a personal bond of
Rs.20,000/- by the petitioner and with certain
other conditions. However, said condition has
been imposed not for entertaining an appeal, but
for the suspension of sentence as was being
sought by the appellant. Admittedly, the
complaints were based on a dishonoured cheques
for a sum of Rs.100 lacs and, therefore, to
secure the rights of the complainant, the
Appellate Court had initially proposed to impose
a compensation/ fine of Rs.30 lacs upon the
petitioner and, therefore, directed to deposit
the same without an order to pay/ disburse in
favour of the complainant. The Appellate Court
was fully conscious of the amount of the cheques
involved in the case.
26 In the light of the above discussion, I
do not find any infirmity or irregularity or
illegality in the impugned order passed by the
Appellate Court giving direction to the
petitioner to deposit a sum of Rs.7,50,000/- in
each case total being Rs.30 lacs and other
directions given by the Appellate Court for
suspension of sentence of the petitioner, which
are well within his powers under section 389 of
the Code.
27 In view of above facts and
circumstances, when there is no irregularity or
illegality in the impugned order, I do not see
any substance in revision applications and,
therefore, the same need to be dismissed, but
with extending some liberty to the petitioner to
pay the amount in instalments.
28 In the result, the revision applications
are dismissed. Rule is discharged. Interim relief
is vacated. However, the petitioner is permitted
to deposit the amount as per impugned order in
six monthly equal instalments. As and when such
amount is deposited, it is to be invested in FDR,
which shall be subject to outcome of the
litigation between the parties and it would be
appropriate for the trial Court to expedite the
hearing of the appeals and to decide the same
preferably within six months.
(S.G.SHAH, J.)
on bail is concerned, now accused – petitioner
has to apply for bail as per the provisions of
section 389 of the Code and thereupon provisions
of the Criminal Procedure Code pertaining to bail
would apply which empower the Court to impose
such other conditions as it considers necessary,
more particularly now when such appellant is not
simply accused but is a convict; thereby there is
something more than prima-facie evidence against
him. In simple words, before conviction, the
prima-facie evidence is yet to be proved by the
complainant; whereas after conviction, it is to
be considered that there is evidence against the
convict to award him conviction. But only because
there is provision to file an appeal, it cannot
be said that such person is in the same condition
as an accused before the trial Court. In view of
such fact, if the appellate Court deems it fit to
impose certain conditions so as to ultimately
decide the appeal at the earliest by reducing the
imprisonment against payment of more fine which
may be utilized for payment to the victim as
compensation so as to redress his grievance which
may result into physical freedom in favour of the
accused i.e., not to undergo imprisonment, it
cannot be said that the Court has no jurisdiction
to do so. Constitutional and statutory right to
file appeal does not confirm absolute right to be
released on bail, which is quite a discretionary
in nature and there cannot be any straight jacket
formula or rule of thumb that all accused of all
convictions should be released on bail as and
when appeal is filed, irrespective of different
consideration in different type of cases so also
nature and character of the convict. As hardcore
criminals or convicts of heinous crimes are not
released on bail, even a convict under NI Act may
be required to be released on bail or there may
be strict conditions for bail considering modus
operandi and attitude to take disadvantage of any
situation.
Therefore, what is to be seen by the
appellate Court at the time of admitting the
appeals and releasing the accused on bail, is
quite obvious that whether filing of appeals is
genuine or only with a view to prolong the time
and thereby to delay the execution of order of
conviction. Therefore, in such cases, if
appellate Court deems it fit to impose condition
to deposit certain amount, it cannot be said that
such condition is illegal.
24 So far as harshness of such condition is
concerned, it is always subjective, but inasmuch
as, as already discussed earlier, it would depend
upon the amount of cheques in question and,
therefore, it cannot be said that a direction to
deposit Rs.30 lacs in all i.e. aggregate for all
four appeals, is harsh because disputed amount of
cheques is Rs.1 crore. Therefore, practically
even the impugned order cannot be considered as a
harsh order so as to enable the petitioner to be
released on bail because even after depositing
30% amount of the cheques, he is enjoying benefit
of 70% of the amount of the cheques or amount in
dispute. However, at the most the petitioner may
be entitled to some instalments for making such
payment so as to make him convenient to deposit
such amount.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 333 of 2016
RAJNIKANT NATHALAL MANIAR
Versus
JAGDISH JASVANTLAL PATWA & 1.
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 05/07/2016
2 All these revision applications are
between the same parties and though arising out
of different impugned orders in different
appeals, practically in all the matters, similar
law point is involved and, therefore, though the
petitioner has to prefer four separate revision
applications because of four separate impugned
orders in four separate Criminal Appeals arising
out of four separate Criminal Cases, they are
heard together and are decided by this common
judgment. Even parties have also submitted only
one set of arguments in all such matters.
3 Therefore, four revision applications
are decided by this common judgment. Hence
Registry shall keep copy of this judgment in all
the matters.
4 The petitioner in all the revision
applications is facing an order of conviction
under the Negotiable Instruments Act [for short
‘NI Act’] in all such revision applications,
because the petitioner has issued four different
cheques in favour of the respondent – complainant
and, therefore, when all such cheques were
bounced and remained unpaid by the petitioner’s
bank, the complainant has filed complaint under
section 138 of the NI Act before the Court of
Metropolitan Magistrate, Ahmedabad. Such Court
has by impugned order dated 29/3/2016, after
full-fledged trial, convicted the present
petitioner and awarded sentence of simple
imprisonment [SI] for one year with fine of
Rs.5,000/- and in default of payment of fine,
further SI for two months.
5 The petitioner has challenged such
conviction by filing respective appeals before
the City Sessions Court at Ahmedabad. With such
appeals, the petitioner has also filed
applications for bail.
6 However, while granting the bail by its
order dated 26/4/2016, the City Sessions Court
has imposed a condition that the petitioner
should be released on bail till hearing and final
disposal of such Criminal Appeal on depositing
Rs.7,50,000/- before the trial Court and on
executing personal bond of Rs.20,000/- with a
surety of like amount to the satisfaction of the
trial Court, with some regular conditions like
marking presence before the Court on every date
of hearing, not to leave local limits of Gujarat
without prior permission of the Court, not to
misuse his liberty, etc.
7 Being aggrieved by such conditional
order of bail, the petitioner has challenged such
order dated 26/4/2016 by filing present revision
applications.
8 The sum and substance of arguments of
the learned advocate for the petitioner is to the
effect that filing of an appeal by the accused
person is his constitutional and legal right and,
therefore, when right to appeal is provided in
the statute, the petitioner is also entitled to
be released on bail. Therefore, such order of
bail should not be conditional one as purported
in the impugned judgment and same needs to be
quashed and set aside.
9 In support of his such submission,
learned advocate for the petitioner is mainly
relying upon the decision of the Hon’ble Supreme
Court rendered in the case of Dilip S Dahanukar
v. Kotak Mahendra Company Ltd. Reported in [2007]
6 SCC 528 and other judgments referred in such
citation.
10 If we peruse such decision, it becomes
clear that practically the Hon’ble Supreme Court
has discussed so many judgments and other details
mainly for interpretation of section 357 of the
Criminal Procedure Code, 1973 [for short ‘the
Code’] vis-a-vis the provisions of NI Act with
reference to the power to impose fine, but with
due respect to the decision of the Hon’ble
Supreme Court, it is to be recollected here that
the provisions of section 357 of the Code is
mainly with reference to the powers of the Court
to order to pay compensation and not with regard
to imposition of fine. Generally the powers to
impose fine for the offences under the Indian
Penal Code [IPC] are conferred in the Penal Code
itself. Similarly, under section 138 of the NI
Act, there is a provision to impose fine which
can be upto double the amount of the cheque in
question as against different specific amount of
fine for different offences in other enactments
including IPC. Therefore, the powers of the Court
in imposing fine under section 138 of the NI Act
is altogether different and unlimited, but
restricted to the amount of cheque, which can be
different in different cases. Therefore, if the
amount of cheque for which complaint under
section 138 of the NI Act is filed and proved is
Rs.100/-, then the Court has power to impose fine
of Rs.200/-. But if the amount of cheque in such
complaint is of any higher amount, say Rs.1
crore, then the Court has power to impose fine of
Rs.2 crores. Therefore, imposition of any amount
as fine under the NI Act cannot be termed as
harsh based upon the actual figure in such
condition because it would vary from case to case
and in a given case, it may be much more, but it
cannot be said that only because of direction to
deposit huge amount, it amounts to harsh
condition so as to refuse bail to the convict
pending appeal and, therefore, order of bail
should not contain such condition.
11 To be more precise, let us examine the
wording of section 138 of the NI Act, wherein the
relevant portion reads thus :
“..... Such person shall be deemed to have
committed an offence and therefore, without
prejudice to any other provisions of this
Act, be punished with imprisonment for a term
which may extend to two years, or with fine
which may extent twice the amount of cheque
or with both;”
Whereas section 357 of the Code of Criminal
Procedure provides for order to pay compensation;
to be paid to the victim from the amount of fine
that may be imposed upon the accused. But subsection
[3] of section 357 specifically provides
that when a Court imposes sentence, which does
not include fine as a part of it, the Court may,
by way of compensation, order the accused to pay
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. However, such order to pay
compensation can be passed at the time of passing
the judgment of the appeal because pursuant to
sub-section [2] of section 357, if fine is
imposed in a case which is subject to appeal,
though compensation can be paid to the victim
from the amount of such fine, no such payment
shall be made before the period allowed for
presenting the appeal, has been elapsed or before
the decision of the appeal.
12 Whereas sub-section [4] of section 357
of the Code entitles the High Court or Sessions
Court to pass any such order even while
exercising its power of revision. Therefore, one
thing is clear and certain that irrespective of
imposition of fine or imposition of meagre amount
as a fine in an order of conviction by the trial
Court, the High Court and Sessions Court can
award the compensation which may be only with a
rider that payment of which can be made to the
victim only at the time of deciding the appeal.
13 Whereas so far as releasing the accused
on bail is concerned, now accused – petitioner
has to apply for bail as per the provisions of
section 389 of the Code and thereupon provisions
of the Criminal Procedure Code pertaining to bail
would apply which empower the Court to impose
such other conditions as it considers necessary,
more particularly now when such appellant is not
simply accused but is a convict; thereby there is
something more than prima-facie evidence against
him. In simple words, before conviction, the
prima-facie evidence is yet to be proved by the
complainant; whereas after conviction, it is to
be considered that there is evidence against the
convict to award him conviction. But only because
there is provision to file an appeal, it cannot
be said that such person is in the same condition
as an accused before the trial Court. In view of
such fact, if the appellate Court deems it fit to
impose certain conditions so as to ultimately
decide the appeal at the earliest by reducing the
imprisonment against payment of more fine which
may be utilized for payment to the victim as
compensation so as to redress his grievance which
may result into physical freedom in favour of the
accused i.e., not to undergo imprisonment, it
cannot be said that the Court has no jurisdiction
to do so. Constitutional and statutory right to
file appeal does not confirm absolute right to be
released on bail, which is quite a discretionary
in nature and there cannot be any straight jacket
formula or rule of thumb that all accused of all
convictions should be released on bail as and
when appeal is filed, irrespective of different
consideration in different type of cases so also
nature and character of the convict. As hardcore
criminals or convicts of heinous crimes are not
released on bail, even a convict under NI Act may
be required to be released on bail or there may
be strict conditions for bail considering modus
operandi and attitude to take disadvantage of any
situation.
14 In addition to above position of law, if
we peruse the judgment under reference in detail,
it becomes clear that even in such reported case,
after discussing several judgments, which are now
not required to be discussed herein as suggested
by the petitioner, practically the Hon’ble
Supreme Court has also concluded and ordered the
accused before it to deposit a sum of Rs.1 lac
within a period of four weeks from the date of
such order and the Hon’ble Supreme Court has
gone to the extent of even allowing to withdraw
such amount by the respondent – complainant.
Whereas factually, in such reported case, the
trial Court has imposed fine of Rs.25,000/- only
on the company, but Chairman of the company was
directed to pay compensation of Rs.15 lacs in
addition to imposition of SI for one month. While
in appeal against such order, the appellate Court
suspended the sentence subject to deposit of Rs.5
lacs while admitting the appeal of the accused –
Chairman. However, ultimately the Hon’ble
Supreme Court has held that while suspending the
sentence even the appellate Court is entitled to
put appellant on terms and also observed that no
such term could be put as a condition precedent
for entertaining an appeal which is a
constitutional and statutory right. Therefore,
what is held by the Hon’ble Supreme Court is
regarding the rights of the accused to file an
appeal, but not with regard to releasing him on
bail in such appeal. The verdict of the Hon’ble
Supreme Court needs to be recollected in its own
words, which read thus :
“Thus while exercising the appellate power,
ordinarily a person should not suffer
imprisonment only because the conditions
imposed for suspending the sentence are
harsh.”
15 Therefore, practically what is decided
by the Hon’ble Supreme Court in this reported
judgment is to the above effect only and
discussion of other judgments on other issues is
practically to arrive at such conclusion only
and, therefore, those discussions cannot be
treated and considered as ratio decidendi or
determination by the Hon’ble Supreme Court so as
to rely upon it while deciding any such issue.
16 The petitioner is also relying upon a
decision rendered by the Ld. Single Judge of this
High Court in Special Criminal Application No.
3989/2014 between Dhruvaben Bhaveshkumar Mehta v.
Mahindra and Mahindra Financial Services Ltd.,
wherein mainly relying upon the decision of Dilip
S Dahanukar [supra], it was held in following
terms :
“In view of the aforesaid provisions, it is
clear that the appellate Court is having
power to suspend the sentence pending the
appeal, and thereby to release the convict
person on bail. However, while releasing
convict person on bail, a condition which is
harsh cannot be imposed.”
Therefore, though the Ld. Single Judge has
quashed and set aside the condition to deposit
25% of the cheque amount in such case, the
verdict of the Court does not confirm that there
cannot be any such condition when it is
specifically decided that while releasing the
convict person on bail, a harsh condition cannot
be imposed. Therefore, only because of two
judgments which practically confirm that there
can be condition, but it should not be harsh, it
becomes clear that the petitioner has
misconstrued both such judgments in his favour.
17 Before coming to the factual details and
to consider that whether condition imposed in the
present case is harsh or not and in that case,
how to make it liberal i.e. how to make the
petitioner comfortable in order to abide by such
condition, reference to some other judgments is
necessary, which confirms such view.
18 The respondent is relying upon the
decision between Bhagwati Developers v. State of
Gujarat reported in [2013] 5 GLR 3730, wherein
the Ld. Single Judge has considered almost
similar situation which is emerging in the
present case and held that while suspending the
sentence in exercise of powers under section 389
of the Code, the appellate Court can impose such
condition, more particularly, when the accused
has been convicted under section 138 of the NI
Act. Under the circumstances, it is held that no
illegality has been committed by the appellate
Court while passing the impugned order directing
to deposit 25% of the cheque amount, while
suspending the sentence imposed by the trial
Court in exercise of powers under section 389 of
the Code. Therefore, it cannot be said that the
appellate Court cannot impose appropriate
conditions while releasing the accused on bail.
For arriving at such conclusion, the Ld. Single
Judge has relied upon judgment rendered in the
case of Sanjay Chandra v. CBI reported in [2012]
1 SCC 40, wherein also the Hon’ble Supreme Court
has imposed a condition of depositing 25% of the
cheque amount while releasing the applicant on
bail. Therefore, when the offence involved in the
case is with reference to some amount either by
cheating or by scam or under section 138 of the
NI Act, generally it would be necessary and
appropriate to impose a condition upon the
accused to deposit, if not full amount, then
substantial amount or at-least some reasonable
amount to show his bonafide, with the filing of
appeal or revision though it is by way of right,
so as to confirm that it is not preferred only
with a view to delay the process whereby
otherside has to suffer a loss.
19 It cannot be ignored that the provision
of section 138 of the NI Act is practically for
speedy trial of a dispute between the parties
where practically there is no defence available
with the person who has misused the negotiable
instrument.
20 It is quite obvious that the mercantile
community makes frequent use of negotiable
instruments which are the backbone of the entire
commercial world. The issuance of negotiable
instrument carries with it certain underlying
presumptions and expectations that the same would
be honoured on its due date. Therefore, if
transactions and litigation based upon such NI
Act are not completed in time, then entire
financial circle gets upset. The provisions of
Chapter XVIII in Part 3 of the NI Act are
practically added with such purpose to see that
there may not be misuse of negotiable instrument
and further to see that litigation based upon
negotiable instrument, more particularly cheque,
which is nothing but promise to pay the amount,
cannot be dragged into the Civil Court for years
together.
21 In addition to such position, if we
peruse the decision of the Delhi High Court in
the case of Om Prakash Bajaj v. Som Dutt Bajaj
dated 2/2/2009 in Criminal Misc. Case No.
2245/2008, it becomes clear that the Delhi High
Court has even after considering the decision of
the Hon’ble Supreme Court in the case of Dilip S
Dahanukar [supra] observed and held as under :
“14. The said order of the Trial Court
was challenged before the Appellate Court and
while admitting the appeal, the Appellate
Court gave directions to the appellant
company to deposit a sum of Rs.5 lacs each in
place of compensation of Rs.15 lacs awarded
by the learned Trial Court. The writ petition
was filed by the company questioning the
liability of the order of the Appellate
Authority, but without any success whereafter
the matter came before the Apex Court for
consideration. It would be thus noticed in
the facts before the Apex Court clear
directions were given in the order of
sentence to pay a compensation under Section
357(3) Cr.P.C., while in the facts of the
present case compensation has been directed
by the Trial Court based on the amount of
dishonoured cheque of Rs. 4 lakhs, fine of
which could be imposed by the Trial Court to
twice the amount of the cheque, but in place
of the double of the amount directions were
given for the payment of an amount of Rs. 7
lakhs to the appellant. This order under no
circumstances can be considered to have been
passed by the Trial Court under Section
357(3) Cr.P.C. but same in fact has been
passed deriving the mandate from Section 138
of the Negotiable Instruments Act. Even in
the absence of Dilip S. Dahanukar (Supra)
case where Trial Court gave directions for
the payment of compensation amount, the Apex
Court has not placed any fetters on the power
of the Appellate Court but merely put the
appellant to reasonable terms while
suspending his sentence. Relevant para 73 of
the said judgment in this regard is referred
as under:-
“73. We, therefore, are of the opinion:
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.”
15. Based on the said conclusions the
Apex Court found it reasonable to give
directions to the appellant in the said
case to deposit a sum of Rs. 1 lakh in place
of Rs.15 lakhs directed by the Trial Court
and Rs. 5 lakh directed by the Appellate
Court. It would be thus manifest that the
appellate Court although cannot impose any
term as a condition precedent for
entertaining an appeal against the order of
the conviction, the same being a
constitutional and statutory right, but at
the time of passing an order for suspension
of sentence under Section 389 Cr. P.C.
the appellant approaching the Court
seeking suspension of his sentence can be
put to reasonable terms depending upon the
facts of a given case.
16. In view of the foregoing, the judgment of
the Apex Court entitled Dalip S. Dahanukar
(Supra) does not apply to facts of the case.
It is no more res integra that the
observations of the courts cannot be read as
Euclid’s Theorem and that too taken out of
its context. Courts should not place reliance
on decisions without discussing as to how the
factual situation fits in with the fact
situation of the decision on which reliance
is placed. In this regard, the Hon’ble Apex
Court in Union of India Vs. Amrit Lal
Manchanda – (2004) 3 SCC 75 observed as
under:-
15. Cases involving challenges to orders
of detention before and after execution of
the order stand on different footings. Courts
should not place reliance on decisions
without discussing as to how factual
situation fits in with the fact situation
of the decision on which reliance is
placed. Observations of courts are
neither to be read as Euclid’s
theorems nor as provisions of the
statute and that too taken out of their
context. These observations must be read in
the context in which they appear to have
been stated. Judgments of courts are not
to be construed as statutes. To
interpret words, phrases and provisions of a
statute, it may become necessary for
judges to embark into lengthy discussions
but the discussion is meant to explain and
not to define. Judges interpret statutes,
they do not interpret judgments. They
interpret words of statutes; their words
are not to be interpreted as statutes. In
London Graving Dock Co. Ltd. v. Horton
(AC at p. 761) Lord Macdermott observed:
(All ER p. 14 C-D)
“The matter cannot, of course, be
settled merely by treating the ipsissima
verba of Willes, J., as though they were
part of an Act of Parliament and applying
the rules of interpretation appropriate
thereto. This is not to detract from the
great weight to be given to the language
actually used by that most distinguished
Judge….”
16. In Home Office v. Dorset Yacht Co.8
Lord Reid said (at All ER p. 297g-h), “Lord
Atkin’s speech ... is not to be treated as if
it were a statutory definition. It will
require qualification in new circumstances.”
Megarry, J. in (1971) 1 WLR 1062 observed:
“One must not, of course, construe even a
reserved judgment of even Russell, L.J. as if
it were an Act of Parliament.” And, in
Herrington v. British Railways Board9 Lord
Morris said: (All ER p. 761c)
There is always peril in treating the
words of a speech or judgment as though they
are words in a legislative enactment, and it
is to be remembered that judicial utterances
are made in the setting of the facts of a
particular case.
17. Circumstantial flexibility, one
additional or different fact may make a world
of difference between conclusions in two
cases. Disposal of cases by blindly placing
reliance on a decision is not proper.”
Therefore, the ratio decidendi as per above
referred judgments is to the effect that it is
reasonable to impose condition at the time of
passing order for suspension of sentence, whereas
pursuant to the observations made in the case of
Dilip S Dahanukar [supra] at the most Court has
to see that such condition should not be so harsh
that the petitioner may not be released on bail
at all for non-compliance of such condition. But
except that, it cannot be said that no condition
whatsoever can be imposed and that imposition of
condition is not illegal.
22 The decisions of the Bombay High Court
in the cases of [1] Mohmad Hafiz Khan v. Anand
Finance rendered in Criminal Revision Application
No. 119/2003 dated 23/7/2003 and Ajay v.
Laxmikant Trading Co. Pvt. Ltd., in Cri. Writ
Petition No. 625/2015 dated 21/9/2015 would be
relevant to be recollected here wherein the
Bombay High Court has while confirming the
imposition of condition at the time of granting
bail, taken a stand to give reasonable relief to
the petitioner – accused to deposit the amount
i.e. by way of instalments so as to avoid
allegation that such condition is harsh.
23 In addition to above issues on law
point, wherein now as per the above discussion,
when there is no substance in such submission by
the petitioner, if we peruse the factual details,
though minute discussion and determination on
factual details may not be warranted at this
stage so as to avoid prejudice on pending
appeals, at least basic information needs to be
recollected here. It is admitted position that
present petitioner has obtained possession of
property occupied by the complainant against some
MoU and commitments and when such MoU and
commitments could not be fulfilled by him, the
petitioner has agreed to pay an amount of
Rs.1,77,00,000/- to the complainant and issued
different cheques for such payment. It is also
undisputed fact that out of total cheques issued
by the petitioner, six cheques were honoured by
the bank of the petitioner and thereby petitioner
has paid Rs.77,00,000/-, but thereafter
petitioner has to pay remaining amount of Rs.1
crore for which the petitioner has exchanged the
previous cheques with the cheques which are
subject matter of present litigations. Therefore,
when such remaining cheques were not honoured by
the petitioner’s banker, the complainant has
initiated such proceedings. Thereby, prima-facie
it becomes clear that probably there is no
defence available with the petitioner when there
is commitment to make certain payment in writing
and when the petitioner has issued several
cheques to fulfill such commitments and when out
of said cheques, few cheques were already
honoured. Therefore, what is to be seen by the
appellate Court at the time of admitting the
appeals and releasing the accused on bail, is
quite obvious that whether filing of appeals is
genuine or only with a view to prolong the time
and thereby to delay the execution of order of
conviction. Therefore, in such cases, if
appellate Court deems it fit to impose condition
to deposit certain amount, it cannot be said that
such condition is illegal.
24 So far as harshness of such condition is
concerned, it is always subjective, but inasmuch
as, as already discussed earlier, it would depend
upon the amount of cheques in question and,
therefore, it cannot be said that a direction to
deposit Rs.30 lacs in all i.e. aggregate for all
four appeals, is harsh because disputed amount of
cheques is Rs.1 crore. Therefore, practically
even the impugned order cannot be considered as a
harsh order so as to enable the petitioner to be
released on bail because even after depositing
30% amount of the cheques, he is enjoying benefit
of 70% of the amount of the cheques or amount in
dispute. However, at the most the petitioner may
be entitled to some instalments for making such
payment so as to make him convenient to deposit
such amount.
25 The Appellate Court has given direction
for suspension of sentence as awarded by the
Trial Court, subject to the appellant depositing
a sum of equal to 30% of the amount of cheque
being Rs.7,50,000/- in each appeal and released
on bail on executing a personal bond of
Rs.20,000/- by the petitioner and with certain
other conditions. However, said condition has
been imposed not for entertaining an appeal, but
for the suspension of sentence as was being
sought by the appellant. Admittedly, the
complaints were based on a dishonoured cheques
for a sum of Rs.100 lacs and, therefore, to
secure the rights of the complainant, the
Appellate Court had initially proposed to impose
a compensation/ fine of Rs.30 lacs upon the
petitioner and, therefore, directed to deposit
the same without an order to pay/ disburse in
favour of the complainant. The Appellate Court
was fully conscious of the amount of the cheques
involved in the case.
26 In the light of the above discussion, I
do not find any infirmity or irregularity or
illegality in the impugned order passed by the
Appellate Court giving direction to the
petitioner to deposit a sum of Rs.7,50,000/- in
each case total being Rs.30 lacs and other
directions given by the Appellate Court for
suspension of sentence of the petitioner, which
are well within his powers under section 389 of
the Code.
27 In view of above facts and
circumstances, when there is no irregularity or
illegality in the impugned order, I do not see
any substance in revision applications and,
therefore, the same need to be dismissed, but
with extending some liberty to the petitioner to
pay the amount in instalments.
28 In the result, the revision applications
are dismissed. Rule is discharged. Interim relief
is vacated. However, the petitioner is permitted
to deposit the amount as per impugned order in
six monthly equal instalments. As and when such
amount is deposited, it is to be invested in FDR,
which shall be subject to outcome of the
litigation between the parties and it would be
appropriate for the trial Court to expedite the
hearing of the appeals and to decide the same
preferably within six months.
(S.G.SHAH, J.)
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