Punjab-Haryana High Court
Harish Garg vs Sunil Gupta on 14 February, 2025
Neutral Citation No:=2025:PHHC:021639
CRM-M-8054-2025 -1-
127
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-M-8054-2025
Date of Decision:-14.02.2025
HARISH GARG ... PETITIONER
VERSUS
SUNIL GUPTA ... RESPONDENT
CORAM:- HON'BLE MR. JUSTICE SANJIV BERRY.
Present:- Mr. Surinder Garg, Advocate for the petitioner.
*****
SANJIV BERRY, J.(ORAL)
The instant petition under Section 528 of BNSS, 2023, has been
preferred by the petitioner for quashing of the impugned order dated
15.01.2025 (Annexure P-4) passed by learned Additional Sessions Judge,
Panchkula, in CRA No. 04 of 2025 titled as 'Harish Garg Versus Sunil Gupta',
which is preferred by the petitioner against the judgment of conviction
(Annexure P-2) dated 04.12.2024 passed by learned Judicial Magistrate, Ist
Class, Panchkula, in NACT No.776 dated 24.07.2017 titled 'Sunil Gupta
Versus Harish Garg', filed by the respondent under Section 138 of Negotiable
Instruments Act, vide which, while deciding the application for suspension of
sentence, the petitioner was directed to deposit 20% of the compensation
amount within one month as a condition for suspension of sentence.
2. As per the learned counsel for the petitioner, the impugned order
passed by learned Additional Sessions Judge, Panchkula, dated 15.01.2025
(Annexure P-4) is illegal and arbitrary in nature having been passed without
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considering the facts and circumstances of the case. He inter alia contends that
while in the appeal preferred by the petitioner against the judgment of
conviction and order of sentence dated 04.12.2024 (Annexure P-2), the learned
appellate Court has erroneously directed the petitioner to deposit 20% of the
compensation amount within one month as a condition for grant of suspension
of sentence. He contends that this has been done without considering the law
laid down by Hon'ble Supreme Court of India in Jamboo Bhandari vs. M.P.
State Industrial Development Corporation Ltd. & Ors., 2023 (10) SCC 446; to
the effect that imposition of the condition of 20% for deposit of compensation
amount is not an absolute rule and the learned appellate Court should have
considered the exceptional circumstances for waiving of the said condition to
which no opportunity was afforded to the petitioner before imposing the
aforesaid condition. Hence, he prayed for quashing of the impugned order
dated 15.01.2025.
3. From the perusal of the record, it transpires that a criminal
complaint under Section 138 of the Negotiable Instruments Act was filed by the
respondent against the petitioner wherein he was summoned to face trial on the
allegations that in discharge of his existing liability, petitioner had issued
cheques amounting to ₹16,00,000/- to the respondent and on presenting the
same, one cheque dated 15.05.2017 for Rs.3 lakhs was dishonoured by the
Bank with the remarks "funds insufficient" for which the complaint
No.NACT/776-2017 was filed. After conclusion of trial, Judicial Magistrate Ist
Class, Panchkula, convicted the petitioner vide judgment of conviction and
order of sentence dated 04.12.2024 (Annexure P-2) and aggrieved by the same,
the petitioner had filed the appeal bearing No. CRA-04-2025 pending in the
Court of learned Additional Sessions Judge, Panchkula. The learned appellate
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Court while deciding the appeal ordered suspension of sentence but with the
condition that the petitioner will deposit 20% of the compensation amount
within one month.
4. From the submissions made by learned counsel for the petitioner
in the light of facts and circumstances of the present case, it is worth
mentioning here that the Hon'ble Supreme Court in Jamboo Bhandari's case
(supra) had observed as under:-
"6. What is held by this Court is that a purposive interpretation
should be made of Section 148 of the N.I. Act. Hence, normally,
Appellate Court will be justified in imposing the condition of
deposit as provided in Section 148. However, in a case where the
Appellate Court is satisfied that the condition of deposit of 20%
will be unjust or imposing such a condition will amount to
deprivation of the right of appeal of the appellant, exception can
be made for the reasons specifically recorded.
7. Therefore, when Appellate Court considers the prayer
under Section 389 of the Cr.P.C. of an accused who has been
convicted for offence under Section 138 of the N.I. Act, it is
always open for the Appellate Court to consider whether it is an
exceptional case which warrants grant of suspension of sentence
without imposing the condition of deposit of 20% of the
fine/compensation amount. As stated earlier, if the Appellate
Court comes to the conclusion that it is an exceptional case, the
reasons for coming to the said 4 conclusion must be recorded."
5. A bare perusal of the aforesaid judgment of Hon'ble Apex Court,
it would reveal that the learned appellate Court was required to consider as to
whether the present case of the petitioner falls in the exception or not. Further it
has also been specifically laid down that it was erroneous premise that the
deposit of minimum of 20% of the amount is an absolute rule which does not
accommodate any exception.
6. The learned appellate Court while passing the impugned order
dated 15.01.2025 has not discussed or considered as to whether the case of the
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petitioner falls within the exception or not and has mechanically imposed 20%
of the compensation amount as a condition for suspension of sentence of the
petitioner.
7. Resultantly, the impugned order dated 15.01.2025 passed by
learned Additional Sessions Judge, Panchkula, is hereby set aside to the extent
of imposition of condition qua deposit of 20% of the compensation amount and
the matter is remanded back to the learned appellate Court to re-examine the
case after granting an opportunity to the petitioner to make submissions
regarding the exceptional circumstances, which warrants waiver of the
requirement of deposit of 20% of the compensation amount in the light of the
judgment passed by Hon'ble Supreme Court in Jamboo Bhandari's case
(supra).
8. However, any observation made above shall not be construed as
opinion of this Court on the merits of the case and is only meant for the
purpose of decision of present Revision petition.
9. The instant petition is disposed of, in above terms.
(SANJIV BERRY)
JUDGE
14.02.2025
kanika
i) Whether speaking/reasoned? Yes/No
ii) Whether reportable? Yes/No
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