Punjab-Haryana High Court
Parbodh Chander Yadav vs State Of Haryana And Another on 20 January, 2023
1
CRM-M-51556 of 2021
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-51556 of 2021
Reserved on: 12.01.2023
Pronounced on: 20.01.2023
Parbodh Chander Yadav
......Petitioner
Versus
State of Haryana and another
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by: None for the petitioner.
Mr. Vikrant Pamboo, DAG, Haryana.
Mr. Sanjay Verma, Advocate, for the complainant.
NAMIT KUMAR, J.
The case was called twice, however, none has put in
appearance on behalf of the petitioner.
This petition has been filed by the petitioner under Section
438 Cr.P.C. seeking anticipatory bail in Criminal Appeal No.9535 of
2019 and Complaint No.6859 of 2017 by impugning order dated
06.10.2021 (Annexure P-1) passed by the Court of learned Additional
Sessions Judge, Gurugram, whereby fresh non-bailable warrants have
been ordered to be issued against the petitioner and notice to his surety
and identifier have also been ordered to be issued.
The facts as pleaded in the present petition are that
respondent No.2-complainant filed criminal complaint against the
petitioner under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as 'the NI Act'), wherein the trial Court vide
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CRM-M-51556 of 2021
judgment of conviction and order of sentence dated 13.11.2019
convicted and sentenced the petitioner to undergo simple imprisonment
for one year and to pay compensation of Rs.17,00,000/-
(Rs.15,00,000/- + Rs.2,00,000/-) to be paid to the complainant, under
Section 138 of the NI Act. Aggrieved against the judgment of
conviction and order of sentence dated 13.11.2019 of the trial Court,
petitioner filed appeal before the Sessions Judge, Gurugram. The said
appeal was admitted on 14.12.2019 and petitioner was ordered to
deposit 20% of the compensation amount awarded by the trial Court, to
be disbursed to the complainant as per rules. A copy of the same is
placed on record by learned counsel for the complainant. Order dated
14.12.2019 reads as under: -
"Convict put in his appearance in pursuance of the
directions of the Court given vide order dated 12.12.2019.
It is an appeal against the conviction of the accused-
appellant for the commission of offence under section 138
of N.I.Act. Heard. In view of grounds of appeal and facts
and circumstances of the case, the finding recorded by the
Trial Court are required to be re-appreciated as per the
grounds being put forward, as such the appeal stands
admitted. Heard on the application seeking suspension of
sentence and bail. Although the period for which the
sentence awarded to the convict was suspended by the
Trial Court, has already expired, yet in view of the fact
that since the appeal has been admitted for hearing on
merits and it will take sometime to dispose off the appeal,
the impugned order of sentence is suspended till the
conclusion of appeal and the appellant is bailed out
subject to furnishing the bail bonds in the sum of
Rs.50,000/- with one surety in the like amount to the
satisfaction of this Court with a further direction to
deposit 20% of the compensation amount awarded by ld
Trail Court in this Court to be disbursed to the
complainant as per rules. Bonds furnished, accepted and
attested. Let a copy of this order be sent to the learned
Area Magistrate for necessary information and further
action. Requisite intimation be sent to the concerned
Tehsildar regarding furnishing of the surety by Rajaram
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CRM-M-51556 of 2021
s/o Daulat Ram in favour of the accused to facilitate them
to incorporate the entry regarding furnishing of the surety
by the surety in the record in pursuance of the order dated
1.6.2018 passed by the Hon'ble High Court in Civil Writ
Petition no.4898 of 2018. Let notice of the appeal be
issued to the respondent for 27.2.2020 on filing of
requisite copy of grounds of appeal and PF etc."
It has been pleaded in the petition that petitioner was not
able to deposit 20% of the compensation amount as he met with an
accident and was suffering from injury in his leg and got treatment
from the Civil Dispensary, Village Khol, District Rewari and, therefore,
could not appear before the lower appellate Court and vide order dated
11.08.2021, his bail was cancelled and bail bonds were forfeited to the
State and the case was adjourned to 06.10.2021 for issuance of non-
bailable warrants against the petitioner and notice to his surety and
identifier was ordered to be issued for the date fixed.
After hearing learned counsel for the respondents and on
perusal of the record, this Court is of the opinion that firstly, the instant
petition is not maintainable in view of the judgment of the Hon'ble
Supreme Court in the case of Manish Jain v. Haryana State Pollution
Control Board, 2022(1) SCC(Cri) 676 that a person released on bail is
already in constructive custody of law and if law requires him to come
back to custody for specified reasons, application for anticipatory bail
would not lie.
Secondly, the Court of learned Additional Sessions Judge,
Gurugram vide order dated 14.12.2019 while admitting the appeal, has
ordered the petitioner to deposit 20% of the compensation amount
awarded by the trial Court, to be disbursed to the complainant as per rules,
however, the said order was neither challenged by the petitioner nor was
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CRM-M-51556 of 2021
complied with by depositing 20% of the compensation amount and also
did not appear before the Court on 08.03.2021 and 11.08.2021 when his
bail was cancelled and bail bonds were ordered to be forfeited to the State
and non-bailable warrants against him were ordered to be issued along
with notice to his surety and identifier. Deposit of 20% of the
compensation amount in terms of Section 148-A of the NI Act is
mandatory and on non-compliance of the same petitioner's bail has rightly
been cancelled. In Surinder Singh Deswal @ Col. S.S. Deswal v.
Virender Gandhi, 2020(1) R.C.R. (Criminal) 604 the Hon'ble Supreme
Court has held that where a conditional order of suspension of sentence
has been passed by the Appellate Court, on non-fulfilment of the
condition, the suspension order can be vacated. Reference may be made
to Paras 17 to 19 of the judgment, which are reproduced as under:-
"17. The judgment of Punjab and Haryana High Court in
Vivek Sahni and another(supra) which has been relied by
the learned counsel for the appellants has been noted and
elaborately considered by the High Court in the impugned
judgment. In paragraph 14 and 15 of the impugned
judgment of the High Court reasons have been given for
distinguishing the Vivek Sahni' case.
18. The High Court is right in its opinion that question
No.2 as framed in Vivek Sahni's case was not correctly
considered. When suspension of sentence by the trial court
is granted on a condition, non- compliance of the
condition has adverse effect on the continuance of
suspension of sentence. The Court which has suspended
the sentence on a condition, after noticing noncompliance
of the condition can very well hold that the suspension of
sentence stands vacated due to non-compliance. The order
of the Additional Sessions Judge declaring that due to
non- compliance of condition of deposit of 25% of the
amount of compensation, suspension of sentence stands
vacated is well within the jurisdiction of the Sessions
Court and no error has been committed by the Additional
Sessions Judge in passing the order dated 20.07.2019.
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CRM-M-51556 of 2021
19. It is for the Appellate Court who has granted
suspension of sentence to take call on non-compliance and
take appropriate decision. What order is to be passed by
the Appellate Court in such circumstances is for the
Appellate Court to consider and decide. However, non-
compliance of the condition of suspension of sentence is
sufficient to declare suspension of sentence as having been
vacated."
In view of the above, there is no merit in the present
petition and the same is dismissed.
(NAMIT KUMAR)
20.01.2023 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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