IMPORTANT POINT
The court established that conditions for suspension of sentence must be justified with reasons, considering the accused's financial situation and prior payments.

JUDGMENT :

1. Heard Mr. Tejas Barot, learned Senior Advocate assisted by Mr. Daifraz Havewalla, learned advocate for the applicant, Mr. Hardik Mehta, learned APP for the respondent – State and Mr. Bhaumik Dholariya, learned advocate for respondent no.2 who has received instructions to appear in the matter. Let his Vakalatnama be accepted.

2. The revisionists who were accused nos.1 to 6 in Criminal Case no.35380/2021 had challenged the judgment and order of conviction dated 19.4.2024 passed by the learned 18th Additional Chief Judicial Magistrate, Surat before the learned 9th Additional District and Sessions Judge, Surat in Criminal Appeal no.389/2024. While suspending the sentence under Section 389 of the Cr.P.C. for the conviction under Section 138 of the Negotiable Instruments Act, 1881, one of the condition which was laid down was to pay 20% of the fine/compensation amount. The learned Trial Court had ordered fine/compensation amount to be paid as Rs.8,34,89,155/- under Section 352(1) of the Cr.P.C. The order was to pay the amount within a period of two months and in default to undergo two months’ SI. The challenge now is given to the order below application Exh.9 passed by the learned 9th Additional District and Sessions Judge, Surat on 25.7.2024, wherein the applicants as accused have made a prayer for giving set off to the amount which was deposited by the accused at their volition during the course of trial, against the order passed by the learned 9th learned Sessions Judge, Surat below Exh.4 while considering the application of the accused for enlarging on bail noting that the Court had directed the accused to deposit 20% of the amount of fine/compensation within 30 days from the date of the order.

3. Learned Senior Advocate Mr. Tejas Barot with Mr. Havewalla for the revisionists submitted that it was urged before the learned 9th learned Sessions Judge, Surat that the accused had already deposited huge amount more than 20% of the cheque amount on their own volition without any order being passed by the learned Trial Court during the course of trial and thus, a further direction of depositing 20% of the amount would cause tremendous financial hardship to him. Further, it was submitted that during the course of the Criminal Case, properties of the accused had been surrendered to the respondent bank which also bears a huge value and therefore, considering the facts of the case, the accused had asked for the set off of the amount which was already deposited before the learned Trial Court.

3.1 Learned Senior Advocate Mr. Barot submitted that the application Exh.9 came to be rejected and therefore, the present revision has been filed.

3.2 Learned Senior Advocate Mr. Barot submitted that on 17.5.2024, the revisionists had sought permission to place on record the documents regarding payment made to the respondent no.2 bank during the course of trial and when the matter was taken up on board on 17.5.2024, the revisionists produced documents indicating the details of payment made to the respondent no.2 and submitted that about Rs.1,90,00,000/- was paid and further submitted that 20% of the cheque amount comes to about Rs.1,66,97,831/-. Advocate Mr. Barot submitted that the prayer would be justifiable as the revisionists would have the burden of paying the total amount which was ordered and further submitted that the act of depositing the money during the course of trial was also noted by the learned Trial Court Judge in his judgment.

3.3 Advocate Mr. Barot has referred to the judgment in the case of Honnaiah T.H. v. State of Karnataka, 2022 SCC OnLine SC 1001, wherein the Hon'ble Supreme Court has dealt with the ‘interlocutory orders’ and ‘intermediary orders’ by referring to various judgments and thus, Mr. Barot submitted that the order impugned would effect the substantial right of the revisionists since in failure to deposit the money, right of appeal would get frustrated and the revisionists would be sent to jail.

3.4 Mr. Barot has