2009 Supreme(Raj) 2283
RAJASTHAN HIGH COURT
Raghuvendra S.Rathore, J.
Amarveer Singh - Appellant
Versus
State of Rajasthan & Ors. - Respondent
S.B. Criminal Misc. Petition No. 1356 of 2009.
Decided On : 10-09-2009
Advocates:
Dishonour of cheque of Rs. 12.50 lakh - Accused convicted and sentenced to 2 years SI and to pay compensation of Rs. 15 lakhs - Sentence suspended subject to payment of 50% of the amount - This is onerous condition and set aside.
Headnote:
(a) Criminal Procedure Code – S. 389 – Criminal Procedure Code – S. 439 – The matter relates to the appeal against conviction it was observed no onerous conditions can be imposed while granting the suspension of the sentence against conviction – it amounts to defeating the right of the bail to the accused person – the court held that – Imposition of any onerous condition such as payment of excessive fine despite a substantive sentence being ordered against the accused person will not be justified – as it results defeating the right of the accused of hearing of appeal and he will be left with no choice but to undergo his sentence irrespective of any possible chance of acquittal.
(b) Negotiable Instruments Act, 1881 – S. 138 – Criminal Procedure Code – S. 389 – The matter relates to the dishonor of the cheque amounting Rs 12.50 lakhs – wherein conviction given for the period of two years along with the payment of compensation amounting Rs 15 lakhs – an appeal was made for the suspension of the sentence – the appellate court suspended the sentence while imposing on the accused to deposit 50% of the above stated penalty – this was challenged by the accused person as being onerous – it was held no onerous conditions can be imposed on the accused while granting suspension of the sentence – court quashed and set aside the above imposition of condition as being bad in Law.
JUDGMENT :
1. - As agreed by the parties, the matter is being finally heard.
2. The petitioner has filed this criminal miscellaneous petition challenging the order dated 17.07.2009 passed by the learned Additional District and Sessions Judge (Fast Track) No. 4, Jaipur City, Jaipur, whereby an application under Section 389 Criminal Procedure Code was decided, imposing a condition of depositing 50% of fine in the trial court. Further, it was ordered that the accused petitioner shall execute a bond of Rs. 20,000/- and one surety of the like amount, for his appearance before the Appellate Court. The said order was to be complied within 15 days. Thereupon, the sentence awarded to the petitioner was ordered to be suspended during the pendency of the appeal.
3. In short, the facts of the case are that the non-petitioner had filed a complaint under Section 138 of the Negotiable Instruments Act. It was alleged in it that a cheque No. 000026 dated 05.04.2005 of Kotak Mahindra Bank, of a amount of Rs. 12,50,000/-, was issued in favour of the complainant. Thereafter the petitioner, through his counsel, appeared before the learned trial court. Subsequently, on account of unavoidable circumstances and error on the part of his counsel that the bail bonds of the petitioner were forfeited on 29.05.2009. On having the knowledge of forfeiture of the bail bonds, the petitioner surrendered before the learned trial court on 08.07.2009 and he was sent to judicial custody. A bail application filed by the petitioner was rejected by the trial court on 09.07.2009. Since then, petitioner is behind bars. Thereafter, the petitioner filed another bail application under Section 439 Criminal Procedure Code before the learned District and Sessions Judge, Jaipur City, Jaipur which was transferred to Special Court for Fake Currency, Jaipur.Meanwhile, the learned trial court proceeded in the matter. The petitioner had submitted an application before the learned trial court on 10.7.09, with the request that his counsel may be afforded an opportunity for submitting final arguments. Again on 15.07.2009, an application with similar prayer was filed before the learned trial court i.e. Judicial Magistrate No. 23, Jaipur City, Jaipur. The learned trial court rejected the first application filed by the petitioner seeking opportunity of submitting the final arguments through counsel, on 13.07.2009. Subsequently, the second application filed on 15.07.2009 was rejected by the learned trial court, on the same day. The learned trial court, after rejecting the aforesaid applications also decided the case by its judgment dated 15.07.2009, whereby the petitioner was convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced for two years S.I. Furthermore, it was ordered that the accused shall pay to the complainant an amount of Rs. 15 lacs as compensation. Feeling aggrieved of the said judgment passed by the learned trial court on 15.07.2009, the petitioner preferred an appeal before the learned District and Sessions Judge, Jaipur City, Jaipur which was transferred to the Court of Additional District and Sessions Judge (Fast Track) No. 4, Jaipur City, Jaipur on 17.07.2009. Alongwith the appeal, the petitioner had filed an application under Section 389 Criminal Procedure Code for suspension of sentence awarded by the learned trial court, during the pendency of the appeal. The learned Appellate Court had then decided the application for suspension by the impugned order dated 17.07.2009 (Wrongly mentioned as 15.07.2009). The sentence awarded to the petitioner was ordered to be suspended by imposing a condition on the petitioner to pay 50% of fine before the learned trial court within a period of 15 days.
4. The counsel for the petitioner had urged before the Appellate Court that as the petitioner was behind bars since 08.07.2009 and is the only earning member of his family, he cannot arrange the amount without having an opportunity to do so, after bein
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