Delhi High Court
Govind Lal vs State & Anr on 15 May, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 241/2012
Date of Decision: 15.05.2012
GOVIND LAL ..... Petitioner
Through: Mr. Virender Chaudhary,
Advocate.
versus
STATE & ANR ..... Respondent
Through: Ms. Fizani Hussain, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This revision petition assails the order dated 25.4.2012 of ASJ,
Saket District Courts, New Delhi.
2. The petitioner was convicted by the M.M. under Section 138,
N.I.Act and was sentenced to SI of six months and fine of Rs. 2,50,000/-.
The entire fine amount was ordered to be paid as compensation to the
complainant. The petitioner carried the matter in appeal to the court of
ASJ, Saket Courts. The learned ASJ suspended the substantive sentence
subject to the petitioner depositing the entire fine amount of Rs.
2,50,000/- with the Trial Court and on his furnishing personal bond of Rs.
20,000/- with one surety in the like amount. It is this order of the ASJ
that has been challenged in the present petition.
3. The petitioner challenges the impugned order of the ASJ and the
order of the M.M. on two grounds. Firstly, that M.M. could not impose
fine of Rs. 2,50,000/-. In this regard, it was submitted that as per Section
29 (2) CrPC, the M.M. could not impose fine exceeding Rs. 5000/-. The
second ground for assailing the impugned order is that the learned ASJ
erred in directing deposit of the entire fine amount while suspending the
substantive sentence. In this regard, his submission was that if the appeal
was found fit to be admitted for hearing, the sentence of fine as imposed
was also necessarily to be suspended like the substantive sentence or in
any case, the condition of deposit ought not be more than the one-third of
the fine imposed or in any case, more than the cheque amount. In other
words, the submission was that the condition of depositing the entire
amount was harsh and onerous and incapable of compliance by the
petitioner.
4. I have heard learned counsel for the petitioner finally at the initial
stage itself.
5. The contention that the M.M. did not have the jurisdiction to
impose fine exceeding Rs. 5000/- as per Section 29 (2) CrPC cannot be
gone into the present proceedings as that is pending determination before
the learned ASJ in the appeal against order of M.M.
6. With regard to the contention of deposit of the entire fine amount
as imposed by the learned ASJ for suspending the substantive sentence,
the learned counsel has relied upon various judgments on different High
Courts. In the case of Stanny Felix Pinto Vs. M/s. Jangid Builders Pvt.
Ltd. and Another, passed in Criminal Appeal No. 86 of 2001, the
Supreme Court observed as under:
"We feel that while suspending the sentence for the offence under
Section 138 of the Negotiable Instruments Act, it is advisable that the
court imposes a condition that the fine part is remitted within a certain
period. If the fine amount is heavy, the court can direct at least a portion
thereof to be remitted as the convicted person wants the sentence to be
suspended during the pendency of the appeal".
7. The ratio of all those judgments is that the Appellate Court may
impose condition while suspending the sentence and that the power of
imposing conditions was discretionary. There is no impediment to put
the applicant on terms, while suspending the substantive sentence, like
depositing of fine in the court, but the amount of such condition must be
reasonable, having regard to the entire factors including the one referred
to in Sub-Section (5) of Section 357 CrPC. In some of the judgments
which have been cited, it was held that normally, the court should direct
to deposit the entire amount of compensation, but such direction is
necessarily to depend upon the facts and circumstances of each case.
8. The decision of Stanny Felixc Pinto (supra) was also followed in
Dilip S. Dahanukar Vs. Kotal Mahindra Company Ltd., 2007 (5)
SCALE 452, wherein it was held that not only the amount of
compensation must be reasonable, but the condition of suspending the
sentence should also be reasonable.
9. In the present case, the amount of cheque in question was Rs.
1,53,000/- and the fine that has been imposed by the M.M. was Rs.
2,50,000/-. The legality and propriety as regard to the judgment and
order of conviction and sentence including that of the fine is the subject
matter the appeal that is pending before the ASJ and thus, need not to be
commented upon by this court. However, the unanimous view of the
judicial pronouncements has been that the condition of suspension of
sentence should be just and reasonable and not harsh and onerous. This
will all depend upon the facts and circumstances of each case and also the
financial capacity of the convicts. For one person, even Rs. 10,000/- may
be the onerous and harsh condition, but for other, Rs. 2,50,000/- may not
be so. Though, the financial condition alone is not the determining
factor. This is the prudence and the wisdom of the judge to make a just
and reasonable condition depending upon various factors. Having regard
to the entire factual matrix, the condition of deposit of cheque amount i.e.
Rs. 1,53,000/- by the petitioner seems to be just and reasonable. Thus,
while maintaining that the Appellate Court enjoys the power of imposing
any condition and that there was no illegality in imposing the condition of
deposit of the entire fine amount, but in the given facts as also the
financial condition of the petitioner, the same is found to be slightly harsh
and onerous. Consequently, the impugned order is modified to the extent
that the substantive sentence would stand suspended subject to the
petitioner deposing with the Trial Court a sum of Rs. 1,53,000/- and that
the same shall not be released to the complainant till the disposal of the
appeal. The rest of the impugned order remains undisturbed.
10. Revision petition stands disposed of with the above direction.
M.L. MEHTA, J.
MAY 15, 2012/akb
