JUDGMENT :

1. RULE. Learned APP waives service of notice of rule on behalf of respondent State.

2. By way of this application filed under Section 482 of the Code of Criminal Procedure, the applicant, original accused, has prayed to quash and set aside the order dated 25.02.2019 passed by the Court of learned 2nd Additional Sessions Judge, Rajkot below application Exhibit-5 in Criminal Appeal No. 38 of 2019 whereby, the judgment and order of conviction and sentence dated 25.01.2019 passed by the trial Court under Section 138 of the Negotiable Instrument Act, 1881 (for short, “the N.I. Act”) in Criminal Case No.10955 of 2016 has been suspended on condition that the applicant furnishes personal bond of Rs.10,000/- and also deposits 30% of the cheque amount with the Nazir of the District Court, Rajkot on or before 16.03.2019.

3. The facts in brief, as emerging from the impugned complaint, are that the applicant herein and respondent-complainant (now represented by his legal heir) had shared friendly relations for a long period. In 2013, the applicant borrowed Rs.19 Lacs from the respondent-complainant for purchasing a residential flat by way of (i) Cheque No.223603 dated 18.11.2013 drawn on Rajkot Nagarik Sahkari Bank for Rs.8,90,000/- and (ii) Cheque No.223694 dated 09.12.2013 drawn on the same Bank for Rs.10,00,000/- and (iii) Rs.10,000/- in cash, totalling Rs.19,00,000/-. The respondent-complainant had given the said amount on an assurance by the applicant that the entire amount would be returned within two years. When the respondent-complainant demanded such amount on expiry of the above period, the applicant issued two cheques (i) Cheque No.903380 dated 04.07.2016 for Rs.10,00,000/- and (ii) Cheque No.000001 dated 04.07.2016 for Rs.9,00,000/-. The respondent-complainant deposited the said cheques in his Bank; however, both the cheques were returned on 05.07.2016 with the endorsement of “insufficient funds”. On 25.07.2017 the respondent-complainant issued legal notice to the applicant, which were duly served. As the applicant failed to repay the cheque amount, the respondent-complainant filed a complaint under Section 138 of the N.I. Act, which came to be registered as Criminal Case No.10955 of 2016 before the trial Court at Rajkot.

3.1 After hearing both the sides, the trial Court passed judgment and order dated 25.01.2019 by which the applicant-accused was convicted for the offence punishable under Section 138 of the N.I. Act and was sentenced to undergo simple imprisonment for One year and was ordered to pay compensation of Rs.19,00,000/-, i.e. the cheque amount, to the respondent-complainant and in case of failure to pay such amount, the applicant-accused was ordered to undergo simple imprisonment for a further period of six months.

3.2 Against the judgment and order dated 25.01.2019, the applicant-accused preferred appeal under Section 374 of Cr.P.C. before the Sessions Court, Rajkot in Criminal Appeal No.38 of 2019. Along with the appeal, the applicant also filed an application (Exhibit-5) under Section 389 of Cr.P.C. seeking suspension of the judgment and order of conviction and sentence dated 25.01.2019. The Sessions Court allowed the application Exhibit-5 vide order dated 25.02.2019 on condition that the applicant deposits 30% of the cheque amount with the Nazir of the District Court on or before 16.03.2019.

3.3 Being aggrieved by the conditional order of depositing 30% of the cheque amount passed by the Sessions Court, the present application has been preferred.

4. Learned advocate Mr. H.P. Baxi appearing for the applicant- accused submitted that the trial Court has convicted the applicant for the offence punishable under Section 138 of the N.I. Act and has sentenced him to undergo simple imprisonment for one year and to pay compensation of Rs.19 Lacs to the respondent-complainant; and in case of failure to pay the said amount, the applicant has been ordered to undergo simple imprisonment for a further period of six months.