Punjab-Haryana High Court
Balvir Kaur vs State Of Punjab And Others on 13 July, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CRM-M No. 8711 of 2018
Reserved On: 08.07.2022
Pronounced On: : 13.07.2022
BALVIR KAUR .......... PETITIONER
Versus
STATE OF PUNJAB AND OTHERS .......... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
Argued by: Mr. Saurabh Singla, Advocate
for Mr.Vaneet Kumar Sharma, Advocate
for the petitioner.
Mr. Harpreet Singh Multani, AAG, Punjab
for respondent No. 1.
Mr. S.S.Chatrath, Advocate
for respondent No. 2.
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SURESHWAR THAKUR, J.
1. The learned Sub Divisional Judicial Magistrate, Sultanpur
Lodhi, through a verdict drawn on 20.01.2018 (Annexure P-1), upon, a
criminal complaint bearing CIS No. NACT-2295 of 2013, convicted the
accused - petitioner herein, qua notice of accusation, for an offence
punishable under Section 138 of the Negotiable Instruments Act, 1881 (in
short "the Act").
2. In consequence thereof, through a sentencing order drawn, on
20.01.2018, the learned trial Magistrate concerned, proceeded to impose,
upon, the convict, sentence of rigorous imprisonment extending upto a term
of two years, and, also made a direction, upon, the convict-petitioner herein
to pay an amount of Rs.12,00,000/-, as compensation to the complainant -
respondent No. 2 herein.
3. The above made verdict of conviction, and, the consequent
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therewith sentence of imprisonment, and, also the awarding of
compensation amount to the aggrieved-complainant, became challenged by
the convict, through his instituting an appeal there-against, before the
learned Additional Sessions Judge, Kapurthala.
4. However, during the pendency of the apposite appeal, as,
became preferred by the aggrieved-convict, the latter proceeded to also
institute an application cast under Section 389 of the Cr.P.C., rather before
the learned Appellate Court concerned. The learned Appellate Court
concerned, through an order made thereons, on 16.02.2018 (Annexure P-3),
cast the hereinafter extracted directions, upon, the appellant - convict
(petitioner herein).
" Heard. There are arguable points. Admitted.
Alongwith appeal, an application for condonation of
delay as well as application under Section 389 CrPC has been
moved by the appellant seeking suspension of impugned substantive
sentence imposed by the Trial Court upon him till disposal of this
appeal.
Heard. The disposal of appeal is likely to take some
time. Therefore, impugned substantive sentence imposed upon the
appellant by the learned trial Court shall remain suspended till the
disposal of this appeal, subject to condition that appellant shall
deposit 25 % of the total compensation amount as awarded in the
judgment dated 20.01.2018 passed by the Learned Illaqa Magistrate
with the learned Illaqa Magistrate//Duty Magistrate and subject to
furnishing of personal bonds in the sum of Rs. 50,000/- with one
surety in the like amount, with undertaking not to leave the country
without the prior permission of the Court, to the satisfaction of Illaqa
Magistrate/Duty Magistrate within 15 days from the date of passing
of this order, failing which this order shall cease to have its effect. "
5. A reading of the above extracted order reveals, that the
learned Appellate Court concerned, had ordered for suspending the
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execution of the sentence of imprisonment, imposed upon, the appellant by
the Convicting Court, subject to deposit of 25% of the compensation
amount within 15 days from the passing of the order, and, further subject to
furnishing personal bonds in the sum of Rs. 50,000/- with one surety in the
like amount before the Convicting / Duty Magistrate within the afore period.
6. The challenged condition precedent, imposed upon, the
convict by the learned Appellate Court, upon, the convict's application, is,
unreasonable. Therefore, the quantum of the challenged deposit, inasmuch
as, it directing the petitioner to deposit 25% of the cheque amount, rather
becomes modified to a deposit of 5 % of the cheque amount being made by
the petitioner. The reason for making the above conclusion becomes
spurred, from the factum, that since apart, from the appellate Court insisting,
upon, the convict to deposit a reasonable percentum of the cheque amount,
as a pre-condition for the order suspending the execution of the sentence of
imprisonment, becoming enforceable, rather a remedy, inasmuch as, the
supplemental thereto remedy enshrined under Section 148 of the N.I. Act,
provisions whereof stand extracted hereinafter, being also available to the
aggrieved-complainant, wherethroughs, during the pendency of the apposite
appeal, he can claim determination(s), and, also interim realization(s) of
20 % of the compensation amount.
" 148 Power of Appellate Court to order payment pending
appeal against conviction
(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973, in an appeal by the drawer
against conviction under section 138, the Appellate Court
may order the appellant to deposit such sum which shall
be a minimum of twenty percent of the fine or
compensation awarded by the trial Court:
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Provided that the amount payable under this sub-section
shall be in addition to any interim compensation paid by
the appellant under section 143A.
(2) The amount referred to in sub-section (1) shall be
deposited within sixty days from the date of the order, or
within such further period not exceeding thirty days as
may be directed by the Court on sufficient cause being
shown by the appellant.
(3) The Appellate Court may direct the release of
the amount deposited by the appellant to the
complainant at any time during the pendency of the
appeal:
Provided that if the appellant is acquitted, the
Court shall direct the complainant to repay to the
appellant the amount so released, with interest at the
bank rate as published by the Reserve Bank of India,
prevalent at the beginning of the relevant financial year,
within sixty days from the date of the order, or within
such further period not exceeding thirty days as may be
directed by the Court on sufficient cause being shown by
the complainant. "
7. Consequently, when in the discretion of the appellate Court, it
may also determine an ad interim apposite amount of 20 %, rather as a
compensatory measure to the complainant, if so, if an order with the above
condition, is also made upon convict, upon his application cast under
Section 389 Cr.P.C., thereupon the convict may become put to exacting,
and, immense financial pain, and or, he would also, untenably become
doubly jeopardized. Necessarily, hence the above harsh and, exacting
condition requires, its being, through modification thereof, rather being
undone.
8. In sequel, the challenged condition requires modification, and,
the petitioner is directed to deposit 5 % of the Cheque amount, within four
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weeks before the learned Court concerned, but leaving liberty to the
complainant to constitute, an, application under Section 148 of N.I. Act,
before the appellate Court concerned.
9. In case, the above application, is filed, then it is open to the
learned appellate Court concerned, to pass just orders thereons, but in
accordance with law, and, bearing in mind the above principle of inter-se
proportionality.
10. Disposed of accordingly.
July 13, 2022 ( SURESHWAR THAKUR )
kavneet singh JUDGE
Whether Speaking/reasoned Yes / No
Whether Reportable Yes / No
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