Allahabad High Court
Kishor Jaiswal And Another vs State Of U.P. Thru. Prin. Secy. Home U.P. ... on 23 May, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:31029
Court No. - 12
Case :- APPLICATION U/S 528 BNSS No. - 487 of 2025
Applicant :- Kishor Jaiswal And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home U.P. Lko. And Another
Counsel for Applicant :- Gaurav Pandey,Mayank Sharma
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
Heard learned counsel for the petitioner, learned A.G.A. on behalf of the State.
In view of the order proposed to be passed issuance of notice to respondent no.2 is dispensed with.
It has been submitted by the learned counsel for the petitioner that proceedings under Section 138 of the Negotiable Instruments Act were initiated at the behest of the respondent in complaint case no.15837/2020 [Anita vs. M/S Kamlesh Murari Traders and Another] under Section 138 of Negotiable Instruments Act.
The notices were served upon the opposite parties/ petitioners who appeared and contested the said matter and the complaint was finally allowed by means of judgment and order dated 25.03.2025 by the Special Court of NI Act, Lucknow thereby imposing a penalty for an amount of Rs.600000/- failing which six months' imprisonment was imposed. It was ordered that out of the penalty of Rs.600000/- which 5,75,000/- was to be given to the complainant and the remaining 25,000/- was directed to be deposited in the State Treasury.
The petitioner being aggrieved by the order dated 25.3.2025 has preferred an appeal being Criminal Appeal No.111/2025 before the Sessions Judge, Lucknow .
In the said appeal under Section 374 of CrPC/415 of BNSS the petitioner was required to deposit a minimum of 20% of fine awarded by the learned trial court. The applicant preferred an application for suspension of sentence and prayed for staying of the realization of fine.
The learned Sessions Judge, Lucknow by means of the order dated 16.4.2025 has rejected the application seeking exemption from depositing any amount and, accordingly, had directed the petitioner to deposit 20% of the fine / penalty imposed by the learned trial court.
In assailing the order dated 16.4.2025 the petitioner has submitted that he is suffering from cancer and being in poor financial condition an exception was required to be made in the case of the petitioner from depositing the 20% of the amount.
It has been submitted by the learned counsel for the petitioner that it is not mandatory that the 20% amount be deposited and the same can be dispensed with in exceptional circumstances as stated by the Hon'ble Supreme Court in the case of Jamboo Bhandari vs. M.P. State Industrial Development Corporation Ltd and Others in Criminal Appeal No.2741 of 2023.
In the said case it was the opinion rendered by the Hon'ble Supreme Court that in the exceptional circumstances the sentence can be suspended without imposing the condition of depositing 20% of the fine/ compensation amount. It was clearly stated that while passing any such order the appellate court has to record its satisfaction with regard to the fact that it is an exceptional case and such conclusions ought to be recorded.
Learned counsel for the petitioner has submitted that in para 16 of his application he has stated that the applicant was suffering from cancer and is in poor financial condition and, consequently, these averments were sufficient in itself to demonstrate the exceptional conditions and, accordingly, the appellate court has erred in not granting the exemption from depositing 20% of the fine.
Another ground has been raised by the learned counsel for the petitioner that no reasons have been indicated by the learned trial court while rejecting the said application.
Learned A.G.A. on the other hand has opposed the petition and submitted that apart from the averment made in the para 16 neither was there any document filed along with the said application in support of his contentions nor was any return or balance sheet passed by firm to demonstrate the poor financial condition of the firm. He has submitted that, in fact, the sole proprietor of the firm is suffering from cancer and merely because the sole proprietor is suffering from cancer would not ipsofacto make the proprietorship concern financially week and it cannot be said that the firm also would be in a poor financial condition unless and until there were documents to demonstrate the same.
We have perused the record as well as heard learned counsel for the parties.
The only ground raised by the learned counsel for the petitioner is that the appellate court has not duly considered the grounds raised by him for exemption of 20% of the deposit which was made at the time of the filing of the appeal against the order of the learned trial court under Section 138 of the Negotiable Instruments Act.
It is noticed that the only averment has been made that petitioner is suffering from cancer and is in poor financial condition and no document has been relied or filed neither any medical certificate nor any paper has been filed to indicate the nature and extent of the disease being suffered by applicant no.1. The same is also true with regard to the ground raised pertaining to poor financial condition by the firm as neither any balance sheet nor any ITR has been filed which may demonstrate the poor financial condition of the firm.
In absence of any supporting documents we do not find any reason for the Court to have accepted the prayer made by the applicant. In case, the applicant was desirous that the appellate court may exempt him from depositing the 20% he ought to have made efforts to bring his case under exceptional circumstances. Merely stating on affidavit that a person is suffering from cancer and that he is in poor financial condition would not fulfil the requisites as stated by the Hon'ble Supreme Court in the case of Jamboo Bhandari vs. M.P. State Industrial Development Corporation Ltd and Others in Criminal Appeal No.2741 of 2023. In case any exceptional circumstance is raised then the same has to be demonstrated to the satisfaction of the Court that such exceptional circumstances exists benefit of which is sought by him and prevent him from depositing the statutory amount as provided in Section 141 of the Negotiable Instrument Act.
Learned counsel for the petitioner has thoroughly failed to demonstrate that he is suffering from any life threatening disease and his financial condition is so poor so that he is not in a position to deposit the 20% of the awarded amount.
Accordingly, we do not find any error in the order of the learned trial court rejecting the claim of the petitioner.
In view of the aforesaid contentions of the learned counsel for the parties and after perusing the record this Court finds that the petition is liable to be dismissed and is accordingly, dismissed.
Learned counsel for the petitioner, however, submits that he may be given one opportunity to file a fresh application for exemption annexing all relevant documents pertaining to disease and financial condition of the firm as well as the sole proprietor of the firm and in case the trial court finds that the case falls in exceptional category, the trial court is directed to pass a fresh order.
Accordingly, liberty is granted to the petitioner to file fresh application before the learned trial court and in case the court is satisfied as per the judgment of the Hon'ble Supreme Court in the case of Jamboo Bhandari vs. M.P. State Industrial Development Corporation Ltd and Others (supra) they will pass an appropriate order in accordance with law.
Order Date :- 23.5.2025
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