The appellate court has the power to modify the condition for stay of sentence under Section 148 of the Negotiable Instruments Act in light of the financial difficulties faced by the appellant.

JUDGMENT :

SHAMPA DUTT (PAUL), J.

1. The present revision has been preferred against an order being no. 4 dated 10.12.2019 passed by the Learned Additional District & Sessions Judge, 1st Court, Sealdah, South 24 Parganas in Criminal Appeal No. 17 of 2019 arising out of Complaint Case No. C/786 of 2011 under Section 138 of the Negotiable Instruments Act, 1881.

2. The petitioner’s case is that the opposite party no. 2 filed a complaint case against the petitioner before the learned Additional Chief Judicial Magistrate, Sealdah under Sections 138 of the Negotiable Instruments Act, 1881 which was subsequently transferred to the learned Judicial Magistrate, 6th Court, Sealdah where the same was tried and the petitioner was convicted under Section 138 of the said Act by the judgment and order of conviction dated 26.07.2019, which constrained the petitioner to prefer an appeal against the said order of conviction being Criminal Appeal No. 17 of 2019 before the learned Additional District & Sessions Judge, Sealdah.

3. The allegations leveled against the petitioner are inter alia to the effect that complainant/O.P. No. 2 intended to purchase a flat belonging to the petitioner and paid a sum of Rs.4,15,000/- in several instalments. Subsequently, the petitioner refused to sell the flat and the complainant asked for return of his money. The petitioner, in discharge of the alleged liability, issued the cheque in question in favour of the complainant/opposite party no. 2 and on presentation of the same to the Banker of the petitioner, it was dishonoured.

4. After trial of the case and after hearing of the arguments of the parties herein, the learned Magistrate of the trial Court by an order dated 26.07.2019 has been pleased to convict the accused/petitioner and sentenced him to suffer simple imprisonment for a period of two months and to pay fine of Rs.6,00,000/- in default to suffer further simple imprisonment for one month.

5. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 26.07.2019 passed by the said learned Magistrate, the petitioner preferred an appeal before the learned Additional District & Sessions Judge, Sealdah which was registered as Criminal Appeal No. 17 of 2019 and the petitioner also prayed for stay of the operation of the impugned order of sentence passed by the learned Magistrate.

6. The learned Sessions Court admitted the said appeal on 10.12.2019 and has further been pleased to stay the impugned order of sentence passed by the learned Magistrate subject to payment of 60% of the cheque amount i.e. Rs.2,49,000/- to the complainant/opposite party no. 2 within one month from the date.

7. The petitioner states that the petitioner is facing financial difficulties and is in a severe financially stringent condition and not in a position to accumulate the said heavy amount, coupled with the fact that the petitioner has a good case and there is every chance of success in the said pending appeal, such condition of the stay order may be waived and/or modified to the extent of 20% as the minimum quantum prescribed in Section 148 of the Negotiable Instruments Act to enable the petitioner to pursue his said appeal for the ends of justice.

8. Mr. Satadru Lahiri, learned counsel for the petitioner has submitted that the impugned order is a gross abuse of the process of Court.

9. And that the impugned order passed by the said Sessions Judge is a patent illegality on the face of the record which the petitioner assailed at the time of hearing but the learned Court miserably failed to accept such contention put forward by the learned Advocate appearing for the petitioner and passed the impugned order and as such directing the petitioner to deposit to the tune of 60% instead of minimum prescription of 20% as enshrined in Section 148 of the Negotiable Instruments Act is too harsh to the petitioner.

10. That the impugned order is otherwise bad in law and it is expedient in the interest of justice and to prevent th