Monika Chaudhary vs State Of U.P. And Another
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Allahabad High Court

Monika Chaudhary vs State Of U.P. And Another on 30 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:126563
 
Court No. - 75
 

 
Case :- APPLICATION U/S 528 BNSS No. - 10633 of 2025
 

 
Applicant :- Monika Chaudhary
 
Opposite Party :- State of U.P. and another
 
Counsel for Applicant :- Jitendra Kumar
 
Counsel for Opposite Party :- G.A., Krishna Kant Dubey, Santosh Kumar Dubey
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Jitendra Kumar Pandey, learned counsel for the applicant as well as Sri J.B. Singh, learned AGA for the State and Sri Santosh Kumar Dubey for the opposite party no. 2.

2. A joint statement has been made by learned counsel for the parties that they do not propose to file any affidavit and the application be decided on the basis of the documents available on record. With the consent of the parties, the application be decided at the fresh stage.

3. This application u/s 528 of BNSS has been preferred to quash the impugned order dated 20.02.2025, in Criminal Appeal No. 20 of 2025, (Monika Chaudhary Vs. State of U.P. and another), under section 138 N.I. Act, Police Station- Surajpur, District- Gautam Buddh Nagar, passed by learned Session Judge, Gautam Buddh Nagar in Complaint Case No. 602 of 2022.

4. Learned counsel for the applicant has submitted that post loding of a complaint under Section 138 of the NI Act, the applicant came to be convicted in Complaint Case No. 602 of 2022 on 22.01.2025 in the proceedings under Section 138 of the NI Act whereby the rigorous imprisonment for three months and the fine of Rs. 8,00,000/- was imposed and Rs. 50,000/- was to be deposited in the State exchequer.

5. Questioning the said order, the applicant preferred a Criminal Appeal No. 20 of 2025 along with an application for staying the sentence and recovery of the amount and on 20.02.2025, the Incharge, Session Judge, Gautam Budh Nagar proceeded to direct the applicant to deposit 20% of the compensation of Rs. 8,00,000/- within 60 days under Section 148 of the NI Act.

6. Questioning the said order, the applicant has filed the present application.

7. Learned counsel for the applicant has submitted that the order dated 20.02.2025 passed by the In-charge, Session Judge, Gautam Budh Nagar in Criminal Appeal No. 20 of 2025 issuing a blanket direction for deposit of 20% of the compensation of an amount of Rs. 8,00,000/- cannot be sustained as the claim of the applicant has not been considered as to whether it falls within an exceptional category or not. Reliance has been placed upon the judgment Hon'ble Apex Court in Jamboo Bhandari v. M.P. State Industrial development; 2023 (10) SCC 466 and Muskan Enterprises vs The State Of Punjab: 2024 INSC 1046. He submits that the order be set aside, matte be remitted back to the court below to pass a fresh order.

8. Learned AGA as well as counsel appearing for the opposite party no. 2, on the other hand, submits that sword of conviction is handing in the neck of the applicant, however, according to them, the consideration of the case as to where it falls under exceptional category or not has not been done in the light of Jamboo Bhandari (supra) and Muskan Enterprises (supra). According to them, the order be set aside, matter be remitted back to the court below to pass a fresh order.

9. I have heard the submission so made across the bar and perused the record carefully.

10. The order dated 20.02.2025 reads as under.-

"Case called out.

Learned counsel for the accused/appellant is present. The present appeal has been preferred against judgment dated: 17.01.2025 and sentence dated:-22.01.2025 passed by Court of Special Court 138 NI Act Gautam Buddh Nagar in Complaint Case No. 602 of 2022, whereby the accused has been convicted for offence under Section 138 N.I Act and sentenced 3 months of simple imprisonment and fine of total Rs 8,50,000/-.

Admit, register, issue notice to the opposite party.

Appellant is directed to deposit 20% of the compensation of Rs 8,00,000/- within 60 days under Section 148 of the Negotiable Instrument Act, subject to this condition the sentence is suspended till the disposal of appeal.

As the accused/appellant was on bail during the trial, he shall remain on bail during the disposal of appeal on furnishing a P.B of Rs 30,000/- and two sureties each in the like amount.

Fixed on 15-04-2025 for hearing.

Record be summoned."

11. A close reading of the order dated 20.02.2025 would reveal that the case of the applicant as to whether it falls within the exceptional category or not has not been considered in the light of the judgment in Jamboo Bhandari (supra) and Muskan Enterprises (supra). In Jamboo Bhandari (supra), the Hon'ble Apex Court in para 8, 9 and 10 has observed as under.-

"8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea.

9. we disagree with the above submission. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not.

10. In these cases, both the Sessions Courts and the High Court have proceeded on the erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception."

12. Respectfully following the judgment in the case of Jamboo Bhandari (supra) and Muskan Enterprises (supra), the present application is being decided in the following terms.-

(a) the order dated 20.02.2025 passed by the Incharge, Sessions Judge, Gautam Budh Nagar in Criminal Appeal No. 20 of 2025 insofar as it directs the applicant to deposit 20% of the compensation of Rs. 8,00,000/- within 60 days in exercise of the powers under Section 148 of the NI Act is set aside; (b) the matter stands remitted back to the court below to pass a fresh order in the light of judgment as referred to above and Section 148 of the NI Act.

13. Learned counsel for the applicant has made a statement at bar that as per the instructions, the applicant shall not take adjournment, thus, the court below is directed to decide the matter afresh with respect to grant of compensation under Section 148 of the NI Act with most expedition without granting any unnecessary adjournment and, in case, any adjournment is granted then the same should be in exceptional circumstances not beyond the stretch of 5 days. This Court expects that the court below shall decide the said application within a period of one month.

14. Photo copy of the deposit of Rs. 500/- which was to be submitted before the Allahabad High Court Legal Aid is being kept on record and marked as Appendix 'A'.

Order Date :- 30.7.2025

Rajesh