The court has the discretion to modify the condition of deposit of 20% of the compensation amount imposed by the appellate court if it is satisfied that such a condition will amount to deprivation of the right to appeal.

ORDER

1. RULE. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent– State.

2. By way of this petition, the petitioner has challenged an order dated 02.03.2024 passed in Criminal Appeal No.19 of 2024 by the learned Principal District Judge, Porbandar below Exh.4,

while releasing the petitioner on regular bail pending hearing of the Criminal Appeal, wherein the petitioner was directed to pay 20% of the compensation awarded by the trial Court to the original complainant or to deposit the same before the appellate Court within a period of 60 days.

3. Learned advocate for the petitioner submits that the petitioner is original accused in Criminal Case No.261 of 2017 where the trial Court has convicted him by judgment and order dated 31.01.2024 under Section 138 of the Negotiable Instruments Act with simple imprisonment of 1 year and directed to pay compensation of Rs.8,66,000/- which is twice the amount of cheque within a period of 1 month from the date of judgment, failing which he has to undergo further sentence of 6 months. Against the said judgment, the applicant has preferred an appeal before the appellate Court being Criminal Appeal No.19 of 2024 with an application under Section 389(1) of the Code of Criminal Procedure for suspension of sentence at Exh.4. The appellate Court, while admitting the appeal, has passed an order blow Exh.4 and directed the petitioner to deposit 20% of the compensation amount within a period of 60 days on 02.03.2024.

3.1 Learned advocate Mr. Trivedi has submitted that 20% of the compensation amount is against the provisions of Section 138 of the Negotiable Instruments Act and the same tantamount to denial of justice since the petitioner would be unable to pay the amount, since such amount would be above the capacity of the petitioner. Learned advocate has submitted that 20% of the cheque amount is the regular practice.

3.2 In support of his case, learned advocate has relied upon a decision in case of Jamboo Bhandari vs. Madhya Pradesh State Industrial Development Corporation Limited & Ors. reported in (2023) 10 SCC 446, wherein Hon'ble Apex Court has observed that normally the appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in case where the appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right to appeal or the appellant, exception can be made for the reasons specifically recorded.

Learned advocate Mr.

Trivedi submitted that the petitioner is ready and willing to deposit 20% of the cheque amount as that would help him to pursue the appeal.

4. In view of the observations made in the above referred judgment in case of Jamboo Bhandari (supra), the order of the appellate Court to deposit 20% of the compensation would frustrate the right of the petitioner to pursue his appeal, which is statutorily granted to the petitioner.

Since the compensation ordered by the trial court is on higher side, considering the peculiar facts and circumstances of the case and in view of the preposition as laid down by the Hon'ble Apex Court in the case of Jamboo Bhandari (supra), the direction issued in the impugned order dated 02.03.2024 passed by the learned Principal Sessions Judge, Porbandar in Criminal Appeal No. 19 of 2024 below Exh.4 stands modified. The petitioner is directed to deposit 20% of the cheque amount before the appellate Court and such deposit may be made within a period of 15 days from the date of receipt of writ of this order and on deposit of such amount, petitioner shall be released on bail in accordance with the order dated 02.03.2024 by the appellate Court in Criminal Appeal No. 19 of 2024 below Exh.4.

5. With above observations and directions, the petition is partly allowed in the above terms.

Rule is made absolute to the aforesaid extent.

Direct service is permitted.