The imposition of penalty under Section 138 of the Negotiable Instruments Act, 1881 should be in accordance with the facts and circumstances of the case and the conduct of the parties involved.

JUDGMENT

Vikas Bahl, J. (Oral). - This is a petition filed under Section 482 of Cr.P.C. for setting aside the impugned order dated 02.12.2021 to the extent that penalty amounting to Rs.50,000/- has been imposed by the Sessions Judge, Sirsa, while granting anticipatory bail to the petitioner in the proceedings initiated by respondent No.1 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the Act of 1881") in a Criminal Complaint dated 26.02.2016.

2. Learned counsel for the petitioner has submitted that in the present case, the proceedings under Section 138 of the Act of 1881 had been adjourned on account of COVID pandemic and has referred to the zimni orders from 06.02.2021 to 23.09.2021. It is further submitted that from the zimni order dated 06.02.2021, it is apparent that the statement of the petitioner under Section 313 of Cr.P.C. was to be recorded and notice was issued for 18.08.2021 and thereafter, the fresh notices were issued on 18.02.2021 as well as on 25.03.2021 and thereafter, on 03.05.2021, the case was adjourned on account of COVID pandemic and it is only on 23.09.2021 that report had come that the petitioner had been served and his bail order was cancelled and non-bailable warrants were issued for 03.12.2021. It is argued that the petitioner had moved a petition under Section 438 of Cr.P.C. for grant of anticipatory bail on 26.11.2021 and had also referred to the medical record (Annexure P-4), as per which, the petitioner was having back problem and thus, he could not appear on 23.09.2021. It is further argued that although, the Sessions Judge, Sirsa was pleased to grant bail to the petitioner but however, imposed a penalty of Rs.50,000/- in addition to the petitioner furnishing personal bond in the sum of Rs. 1,50,000/- with two sureties of the like amount each. It is contended that the said amount of Rs.50,000/- is highly excessive and the same may either be set aside or reduced.

3. Notice of motion.

4. On advance notice, Mr. Saurabh Bhardwaj, Advocate, appears and accepts notice on behalf of respondent No.1 and Mr. Praveen Bhadu, AAG, Haryana, appears on behalf of respondent No.2 and have submitted that they are fully prepared to argue the matter and assist this Court. They have vehemently opposed the present petition and have thus, prayed for the dismissal of the present petition.

5. Learned counsel for respondent No.1 has submitted that in the present case, the petitioner has completely misused the process of law and has submitted that the petitioner, after the passing of the order dated 02.12.2021, had not challenged the said order and in fact, moved an application dated 15.12.2021 (Annexure P-5) for extension of time to deposit the said amount of Rs.50,000/-. It is argued that vide order dated 15.12.2021 (Annexure P-6), an application was moved and the petitioner was directed to deposit penalty amount of Rs.50,000/- within a period of 30 days from 15.12.2021. It is further argued that the order dated 15.12.2021 is not under challenge in the present proceedings, thus, the present petition deserves to be dismissed on the said ground alone. It is contended that in the present case, a complaint filed under Section 138 of the Act of 1881 is with respect to the loan taken by the petitioner to the tune of Rs.27,60,000/- and for the outstanding amount, a cheque dated 20.11.2015 amounting to Rs.22,20,000/- was issued by the petitioner to the respondent-HDFC Bank and the complaint was filed in the year 2016 and every effort has been made by the petitioner to delay the said proceedings. It is highlighted that earlier also, the petitioner had not appeared before the Court and accordingly, on 07.06.2018, his bail was cancelled and it is only on 12.07.2018 that the petitioner appeared in the proceedings. It is further submitted that three times the cost was imposed on the petitioner for taking adjournments and for not cross-examining the witnesses of the complainant and ultimately, on