Allahabad High Court
Firoz vs State Of U.P. And Another on 20 December, 2021
Bench: Syed Aftab Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 85
Case :- CRIMINAL REVISION No. - 3150 of 2021
Revisionist :- Firoz
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Rakesh Kumar Verma
Counsel for Opposite Party :- G.A.,Mukesh Joshi
Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the revisionist and learned A.G.A. for the State-respondent.
This Criminal Revision has been filed against the impugned judgment and order dated 27.10.2021 passed by learned Additional Sessions Judge, Court No.10, Moradabad in Criminal Appeal No.31 of 2021 (Firoz Vs. Mohd. Irfan & Others) arising out of Case No.7723 of 2017 (Ifran Vs. Firoz) under Section 138 of N.I. Act, Police Station- Kanth, District- Moradabad. By the impugned judgment and order, learned Appellate Court has dismissed the appeal and has also cancelled the bail granted to appellant-accused during the pendency of appeal.
In brief the facts of the case are that on the complaint of opposite party no.2 revisionist(accused) was tried under Section 138 of N.I. Act in complaint case no.7723 of 2017 (Ifran Vs. Firoz). After conclusion of the trial revisionist(accused) was held guilty for charge under Section 138 of N.I. Act and convicted and sentenced to two years simple imprisonment and fine of Rs.1,30,000/- vide judgment and order dated 24.03.2021. It was also directed that out of the fine, complainant will be entitled to receive Rs.1,25,000/- as compensation and remaining Rs.5,000/- will be deposited in the State Head as fine. Aggrieved by the aforesaid judgment and order of conviction the revisionist(accused) filed a Criminal Appeal No. 31 of 2021. The learned Appellate Court admitted the appeal and enlarged the revisionist (accused) on bail subject to condition that he will deposit half of the amount imposed as fine within a month. Thereafter, revisionist (accused) moved an application dated 25.05.2021 before the Appellate Court for modification of the order dated 12.05.2021 to the extent that a direction be issued to deposit 20% of amount of fine instead of 50%. This application was dismissed by the Appellate Court vide order dated 19.07.2021 and matter was posted for hearing on 04.08.2021. By the impugned order dated 27.10.2021 the Appellate Court dismissed the criminal appeal on the ground that appellant (accused) has failed to comply the order dated 12.05.2020 and deposit half amount of fine.
Learned counsel for the revisionist contended that in a similar matter between the same parties, the Appellate Court while admitting the appeal and enlarging the accused(appellant) on bail has directed to deposit 20% of amount of fine but in the present case the Appellant Court has given a direction to deposit 50% of amount of fine. The appellant moved an application before the Appellate Court to modify the order in accordance with the order passed in other Criminal Appeal No. 32 of 2021 but the learned Appellate Court without properly considering the matter rejected the application. Learned counsel for the appellant further contended that learned Appellate Court has also dismissed the appeal on the ground that 50% of amount of fine as directed has not been deposited, without affording any opportunity to the appellant to submit arguments on the merits of the appeal, hence the impugned order is arbitrary and illegal. Learned counsel also submitted that revisionist(accused) is ready and willing to deposit 50% of the amount of fine as directed by the Appellate Court vide order dated 12.05.2021.
Learned counsel for the opposite party no.2 submitted that revisionist(accused) was enlarged on bail subject to condition that he will deposit 50% of the amount of fine within a month but after being set at liberty instead of depositing fine while enjoying liberty he moved an application for modification of the aforesaid order just to linger the matter. This application was also rejected by the Appellate Court on 19.07.2021 but even then the revisionist(accused) has not made any compliance of the order dated 12.05.2021 and misused his bail. Learned counsel further contended that as revisionist(accused) is not in jail, his prayer for bail cannot be considered..
It is undisputed that vide order dated 12.05.2021 revisionist(accused) was admitted to bail subject to condition that he will deposit 50% of the amount of fine within a month. After getting released the revisionist(applicant) moved an application before the Appellate Court to modify the aforesaid order which was rejected. It is also clear from the perusal of the impugned order that the Appellate Court has dismissed the appeal simply on the ground that accused/appellant has failed to comply the order dated 12.05.2021 and to deposit amount of fine as directed. The appeal has not been heard and decided on merits. The condition of depositing 50% of the amount of fine was imposed in bail during appeal, so the appeal itself cannot be dismissed on this ground. At the most, Appellate Court can do was to cancel his bail but the learned Appellate Court has dismissed the appeal on this ground. So, the impugned order dismissing the appeal suffers from manifest illegality and cannot be sustained. The revision is liable to be allowed.
Considering the submissions of learned counsel for the revisionist that he is ready to deposit 50% of the amount of fine it is directed that if within 15 days from today the revisionist (accused) appears before the Appellate Court and shows his willingness to deposit the amount in pursuance of the order dated 12.05.2021 the Appellate Court will permit him to deposit the amount of fine. Failing which, the Appellate Court may consider for cancellation of his bail during the pendency of the appeal.
The Criminal Revision is allowed and order dated 27.10.2021 is set aside. The Appellate Court shall restore the appeal to its original number and after affording opportunity of hearing to the parties will decide the criminal appeal in accordance with law.
Order Date :- 20.12.2021
Krishna*
