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2010(1) Bankmann 383 (Bom.)
BOMBAY HIGH COURT
A.S. Oka, J.
Gurukripa Traders —Appellant
versus
Kailas Ramnarayan &
Anr. —Respondents
Cri. W.P. No. 2251 of 2008
Decided on 7.4/8.6.2009
For the Petitioner:Mr. M.S. Karnik, Advocate.
For the Respondent No. 1:Mr. Fiji Fredricks i/b. F.F. & Associates, Advocates.
For the State: Mr. S.R. Borulkar, P.P.
IMPORTANT POINT
Court can direct only a reasonable amount out of compensation amount to be deposited as a condition for suspension of sentence.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 389(1)—Dishonour of cheque—Conviction and sentence—Petitioner was sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs. 10 lakh for suspension of substantive sentence—No such term could be put as a condition precedent for entertaining appeal which is a constitutional and statutory right—Court can direct only a reasonable amount out of compensation amount to be deposited as a condition for suspension of sentence—Appellant cannot be called upon to deposit unreasonable amount—Petitioner is a student and has already deposited sum of Rs. 5 lakhs out of fine amount of Rs. 10 lakhs—Substantive sentence of imprisonment was of one month—Sentence in default of payment of fine was of fifteen days—After admitting appeal against conviction, a direction issued imposing and condition of deposit of Rs. 10 lakh virtually amounted to denial of right of appeal to petitioner—Impugned order directing deposit of entire fine amount modified. (Para 10)
(ii) Court Fees Act, 1959—Sections 7 and 43 read with Article 7— Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Appeal against conviction—Payment of ad valorem Court fee—In Court Fees Act there is no provision requiring an appellant who has preferred as appeal against an order of conviction for offence u/s 138 of N.I. Act to pay ad valorem Court fees on compensation/fine made payable under order of conviction—Direction issued by Sessions Court requiring appellant to pay ad valorem Court fees on basis of amount of fine or compensation is completely illegal—Directing appellant to pay such an amount completely defeats absolute right of appeal against order of conviction—Impugned direction set aside. (Paras 15 to 18)
A.S. Oka, J.—On 5th May, 2009 the learned Counsel appearing for the parties were put to notice that this petition will be disposed of finally at the admission stage. Accordingly, the submissions have been heard of the learned Counsel appearing for the petitioner, the learned Counsel appearing for the first respondent as well as learned Public Prosecutor for the State.
2. The petitioner was arraigned as an accused in a complaint filed by the first respondent alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the said Act”). By the judgment and order dated 3rd October, 2008, the learned Judicial Magistrate, First Class, at Niphad convicted the petitioner for commission of offence under Section 138 of the said Act. The petitioner was sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs. 10.00 lakh. In default of payment of fine, he was sentenced to undergo simple imprisonment for fifteen days. Out of the fine amount of Rs. 10.00 lakh, a sum of Rs. 9.00 lakh was ordered to be paid to the first respondent.
3. The petitioner was taken in custody on passing the order of conviction. An appeal against the order of conviction was preferred by the petitioner. In the appeal an application was made by the petitioner under Section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said Code”). An order was passed on the said application at Exhibit-4 on 8th October, 2008 by the learned ad hoc Additional Sessions Judge, Niphad. By the said order the learned Judge stayed the execution of sentence on the petitioner depositing 50% of the fine amount immediately and the remaining amount within fifteen days. The petitioner was ordered to be enlarged on bail only on deposit of 50% of the fine amount.
4. It appears that on the appeal against the order of conviction, the petitioner was called upon to pay ad valorem Court fees on the basis of the fine amount. It appears that the petitioner was called upon to pay Court fees of Rs. 51,800/- Initially the Sessions Court granted time up to 15th October, 2008 to the petitioner to pay the Court fees. On 15th October, 2008, on an application filed by the petitioner, the learned Additional Sessions Judge passed an order granting time to the petitioner as a last chance to deposit the Court fees till 20th October, 2008. The challenge in this petition under Article 227 of the Constitution of India is to the order dated 8th October, 2008 passed on application under Section 389(1) of the said Code. The challenge is also to the direction issued by the Sessions Court to the petitioner to pay the Court fees on the appeal.
5. On 22nd October, 2008, this Court issued notice to the first respondent. This Court, by way of ad interim, relief, stayed the direction of deposit of Court fees of Rs. 51,800/-. This Court also stayed the direction to deposit the balance 50% of the fine amount. It must be stated here that in terms of order dated 8th October, 2008, the petitioner deposited a sum of Rs. 5 lakh with the Sessions Court before filing this petition and accordingly the petitioner has been enlarged on bail.
6. The submission of the learned Counsel for the petitioner is that as a condition for suspension of the substantive sentence the petitioner could not have been called upon to deposit the entire fine amount of Rs. 10 lakh. The submission of the Counsel for the petitioner is that the Sessions Court could have imposed a condition of deposit of a reasonable amount. According to the learned Counsel for the petitioner, the petitioner is a student and therefore it was unjust on the part of the Sessions Court to have directed the petitioner to deposit the entire fine amount of Rs. 10 lakh. He submitted that a sum of Rs. 5 lakh has already been deposited by the petitioner which is a reasonable amount.
7. He submitted that there is no provision in the Bombay Court Fees Act, 1959 (hereinafter referre
