Andhra Pradesh High Court - Amravati
Inaganti Gandhi, vs Mullapati Malkondaiah, on 24 April, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
MAIN CASE No. Criminal Petition No.3048 of 2023
PROCEEDING SHEET
Sl. Date ORDER OFFICE
No NOTE
2. 25.04.2023 BSB, J
Criminal Petition No.3048 of 2023
Issue notice to the 1st respondent.
Learned counsel for the petitioner is
permitted to take out personal notice to the 1st
respondent by RPAD and file proof of service.
List on 09.05.2023.
________________
B.S.BHANUMATHI, J
I.A.No.1 of 2023
This application under Section 482 CrPC is
filed with a prayer to suspend the sentence of
imprisonment passed against the petitioner in
C.C.No.402 of 2017 on the file of the Court of II
Additional Judicial Magistrate of First Class,
Nellore.
2. Heard learned counsel for the petitioner.
3. Learned counsel for the petitioner
submitted that, in the present case, the order of
stay of all further proceedings in C.C.No.402 of
2017 on the file of the Court of II Additional
Judicial Magistrate of First Class, Nellore, was
granted by the High Court vide order, dated
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Crl.P.No.3048 of 2023
27.02.2023, passed in Criminal Petition No.1504
of 2023.
4. However, the learned Magistrate passed
judgment on 01.03.2023, and therefore, the
same has been carried in appeal in Criminal
Appeal No.66 of 2023 on the file of the Court of
IV Additional District Judge, Nellore. Along with
the appeal, Crl.M.P.No.22 of 2023 was filed
seeking suspension of the sentence.
5. Learned counsel further submitted that
while ordering suspension of the operation of
sentence, the appellate Court directed the
petitioner to deposit 20% of the compensation
amount imposed by the trial Court, i.e., 20% of
Rs.70,00,000/- on or before 27.04.2023. The
said condition imposed by the appellate Court is
an onerous condition and against the law, in
view of the peculiar facts & circumstances of this
case, i.e., judgment impugned in appeal is
non est due to pronouncement of judgment in
spite of stay orders passed by this Court. He
further submitted that though this illegality in
passing the judgment by the trial Court was
brought to the notice of the appellate Court, the
direction for deposit of the amount was passed.
6. It is further submitted that as per Section
148(1) of the Negotiable Instruments Act,
direction to deposit the amount is the discretion
of the appellate Court, whereas, if the appellate
Court decides to direct such deposit, the
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Crl.P.No.3048 of 2023
mandatory condition is to direct deposit of a
minimum of 20%. Therefore, he contended that
the appellate Court ought to have exercised its
discretion by observing that there is no need to
deposit the amount as the judgment impugned is
non est in the eye of law, and ought not to have
directed the petitioner to deposit 20% of the
amount.
7. Learned counsel further submitted that
before the trial Court, a memo was filed on
01.03.2023 reporting order of stay passed by the
High Court.
8. Perused the copy of the memo filed along
with the criminal petition, i.e., main petition
before this Court.
9. In the memo, learned counsel for the
accused/petitioner herein has merely reported
that the stay application in Criminal Petition
No.1504 of 2023 is for hearing on 27.03.2023.
Learned counsel further supplied photostat copy
of the e-Courts data in two pages, which were
purportedly presented to the trial Court on
01.03.2023.
10. The copy of the e-Courts proceedings,
which is submitted today across the Bench by
the learned counsel would indicate that the
learned counsel for the complainant made the
following endorsement:
"There is no stay. Since the Hon'ble Court
may be pleased to pronounce judgment."
Contd..
BSB, J
Crl.P.No.3048 of 2023
The second page of the e court's
proceedings indicates as follows:
Short Order : Notice/Stay.
Next Hearing Date : 27-03-2023."
11. The learned Magistrate, on 01.03.2023,
recorded on the docket that since there is no
order of stay, he proceeded to pronounce the
judgment. For more clarity, the order, dated
01.03.2023, passed by the learned Magistrate is
reproduced herein below:
"Heard both sides. Perused the record.
The matter in C.C.No.402/2017 was
posted for judgment on 25-01-2023, but
this Court received official memo on
24-01-2023 from the Hon'ble IV Additional
District & Sessions Court, Nellore asked
entire record in Crl.M.P.No.135/2022 in
this case. Hence, this Court not
pronounced judgment and posted time to
time. Finally, this Court received record on
27-02-2023 and posted today for
judgment as the matter is of 2017. On
perusing the memo filed by the petitioner/
accused that he preferred revision, but no
stay granted by Hon'ble High Court of A.P.
Hence, this Court felt that no necessary to
stop the proceedings and inclined to go
further. Accordingly, the memo is closed/
answered in the interest of justice."
12. However, as can be seen from the docket
order noted by the learned Magistrate, it appears
that the Court is not apprised of the actual
position by filing a memo stating that there is an
order of stay passed by this Court on
27.02.2023. On the other hand, learned counsel
for the complainant endorsed that there is no
stay. Of course, it is a matter of appreciation in
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Crl.P.No.3048 of 2023
the appeal. However, in the peculiar
circumstances existing in this case, and taking
into consideration the arguments advanced by
the learned counsel for the petitioner regarding
the discretion vested on the appellate Court
under Section 148(1) of the N.I.Act, the
impugned order, dated 27.03.2023, passed in
Crl.M.P.No.22 of 2023, is temporarily suspended
till 09.05.2023, to the extent of imposition of
condition of deposit of 20% of the compensation
amount.
13. Notice to the 1st respondent/complainant.
________________
B.S.BHANUMATHI, J
Note:- Issue CC by 26.04.2023.
(B/o)
RAR
BSB, J
Crl.P.No.3048 of 2023
