HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 8060/2025 Mukesh Kumar Agarwal S/o Shri Rammurti Agarwal, aged about 53 years, Resident of Ward No. 1, Agarwal Colony, Seemaram Chowk,Village Sikandara, Tehsil Sikrai, Dausa.

----Petitioner Versus

1. State of Rajasthan through Public Prosecutor.

2. Prabhudayal S/o Shri Ramjilal, Resident of Near Bavdi, Village Sikandara, Sikrai, Dausa.

----Respondents For Petitioner(s) : Mr. Rachit Sharma For Respondent(s) : Ms. Arti Sharma, PP with Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

Order

09/03/2026

1. Learned counsel for the petitioner submits that impugned order dated 03.07.2025 passed by learned Court of Additional Sessions Judge Sikrai, District Dausa in Criminal Appeal No.10/2025 by which condition to deposit 20% of fine amount during the pendency of appeal, is unsustainable in the eye of law. Counsel submits that the petitioner filed an appeal against the judgment of conviction and sentence dated 05.06.2025, whereby he was convicted for the offence punishable under Sections 138 of the N.I. Act and sentenced to undergo one year of simple imprisonment along with a fine of Rs.7,90,000/- (Rupees Seven Lakh Ninety Thousand Only). Counsel submits that an application under Section 430 of the BNSS (corresponding to Section 389 of Cr.P.C.) for suspension of sentence was also filed along with the appeal. Counsel further submits that while suspending the execution of sentence of the petitioner, the learned Appellate Court imposed a condition to deposit 20% of the fine amount, i.e., ₹1,58,000/- (Rupees One Lakh Fifty-Eight Thousand Only).

2. Counsel submits that Section 148 of the Negotiable Instruments Act, 1881 and Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 operate in distinct fields and serve independent purposes in the context of appeals arising out of convictions for cheque dishonour. Section 430 of BNSS empowers the appellate court to suspend the execution of the sentence and grant bail to the convicted accused during the pendency of the appeal. While exercising this power, the appellate court may impose appropriate conditions to secure the presence of the accused or ensure the orderly administration of justice. However, this provision does not, by itself, authorize the court to mandate the deposit of a fixed percentage of the fine or compensation amount merely as a precondition for suspension of sentence.

3. Counsel further submits that on the other hand, Section 148 of the NI Act is a special provision specifically introduced to strengthen the enforcement mechanism in cheque dishonour cases. It enables the appellate court to direct the appellant- accused to deposit a minimum of 20% of the fine or compensation awarded by the trial court. Crucially, this power can be exercised only upon an application made by the complainant, and not suo motu or as a routine condition attached to suspension of sentence. Moreover, the accused must be afforded a reasonable opportunity to oppose such an application, ensuring adherence to the principles of natural justice.

4. It is submitted that the use of the word “may” in Section 148 indicates that the provision is directory and discretionary, not mandatory. Consequently, the appellate court must apply its judicial mind to the facts and circumstances of each case before directing any deposit under this section. Therefore, the appellate court cannot conflate the powers under Section 430 of BNSS with those under Section 148 of the NI Act, nor can it impose a condition of depositing 20% of the fine amount solely for the purpose of suspending the sentence. Any such direction must strictly conform to the statutory framework of Section 148 and be preceded by a proper application from the complainant and due consideration of the accused’s objections.

5. Matter requires consideration.

6. Issue notice to the respondents.

7. Learned State counsel accepts notice on behalf of respondent No.1