The Appellate Court can suspend a sentence, but cannot impose a condition that is a condition precedent for entertaining an appeal, which is a constitutional and statutory right.

Kanchan Chakraborty, J.

1) A Short but, indeed, an intricate question of law is raised in this revision application. To be stated precisely, the manner in which the learned Appellate Court suspended the sentence under challenge in the appeal is, in fact, questioned in this application.

2) In a case, under Section 138 of the N.I. Act, being no. C 986 of 1999, the learned Metropolitan Magistrate, 4th Court, Calcutta found the appellant guilty of offence and sentenced him to pay a fine of Rs.15,05,000/-, in default, to suffer S.I. for 3(three) months. The learned Court directed to pay Rs. 15,00,000/-, in case fine is realised, to the complaint of the case as compensation. That judgment and order has been challenged in an appeal in the Court of learned Chief Judge, City Sessions Court, Calcutta being Criminal Appeal No. 74 of 2010.

3) The order dated 18.8.2010 passed by the learned Chief Judge, City Sessions Court, Calcutta which has been impugned in this application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as The Code) is reproduced below: Order No. 3 dated 18.8.2010

“Appellant files certified copy of the impugned judgment and order of conviction and sentence in compliance with the previous order. Let it be kept with the record. A petition is also filed on behalf of the appellant praying for return of the free copy of the final order which was filed along with the Memo of Appeal for admission of this case. Heard, Perused the petition. Considering that the certified copy of the impugned judgment and order of conviction and sentence have been filed, the prayer for return of the free copy of the impugned judgment and order of conviction and sentence to the petitioner on proper receipt and undertaking. Now, heard the Id. Advocate for the appellant, Perused the impugned judgment and order of conviction and sentence. Considering the facts and circumstances and since the appeal has been filed within the statutory period of limitation the appeal is hereby admitted. Call for LCR. Considering that the appeal has been admitted, the prayer for stay of operation of the impugned judgment and order of conviction and sentence dated 30.6.2010 is allowed subject to the payment of 1/4th of the cheque amount by 9.9.10. At this stage a separate petition has been filed by the petitioner/appellant praying that he may be permitted to remain on existing bail. Perused the petition, Heard. Considering the facts and circumstances of the case and since the appeal has already been admitted, the prayer is allowed. The petitioner is permitted to remain on existing bail bond till the disposal of the instant Cri. Appeal. To date for S/R and LCR Appellant is directed to file requites at once.”

4) The ordering portion of the judgment passed in case no. C 986 of 1999 which was appealed against in the Court of learned Chief Judge, City Sessions Court, Calcutta is set out below :

“Complainant is present with his Ld. Advocate. Accused is present with his Ld. Advocate Today is fixed for delivery of judgment, Judgment is ready. It consits of 5 sheets and the same is delivered in open Court. Hence it is ordered. That the accused Kusum Jain found and held guilty of offence u/sec 138 of N.I. Act and she is sentenced to pay a fine of Rs. 15,05000/- (Fifteen lacks and five thousand) i.d. to suffer S.I. for (3) months. If fine realised a sum of Rs. 15,00,000/- (Fifteen lacs) be paid to the complit as compensation convict be given a copy of this judgment free of cost atonce.”

5) Mr. Sudipta Maitra, learned Counsel appearing for the petitioner contended that the learned Trial Court while sentencing the appellant/petitioner, passed no order as to imprisonment but to pay a fine of Rs. 15,05,000/- simpliciter, in default, to suffer S.I. for three(3) months and in case, fine is realised, a sum of Rs. 15,00,000/- to be paid to the complainant as compensation. So, the substantial sentence passed by the learned Trial Court was payment