Punjab-Haryana High Court

Ashok Kumar vs Chander Bhan And Another on 17 January, 2025

                                     Neutral Citation No:=2025:PHHC:006582




123+242     IN THE HIGH COURT OF PUNJAB AND HARYANA
                       AT CHANDIGARH
                                                   CRM-1671-2025 in/and
                                                   CRM-M-64806-2024
                                                   Date of decision: 17.01.2025
                                                                              5
ASHOK KUMAR
                                                               ...PETITIONER
                         V/S
CHANDER BHAN AND ANOTHER
                                                               ...RESPONDENTS

CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present:    Mr. Ajit Sihag, Advocate for the petitioner.
            Mr. Monu Sharma, Advocate for
            Mr. Ankur Malik, Advocate for respondent No.1.
            Mr. Ramesh Kumar Ambavta, AAG, Haryana.
            ****
HARPREET SINGH BRAR,
               BRAR J. (ORAL)

CRM-1671-2025

Present application has been filed under Section 528 BNSS for

placing on record the copy of affidavit dated 09.01.2025 as Annexure P P-4.

For the reasons stated in the application, the same is allowed.

Annexure P-4 P 4 is taken on record subject to all just exceptions.

MAIN CASE

1. The present petition under Section 528 BNSS has been filed for

setting aside of order dated 23.10.2024 (Annexure P P-3) passed by learned

Additional Sessions Judge, Jind in CRA-190 of 202 2024, whereby the sentence of

the petitioner was suspended conditionally by imposing a condition to deposit

20% of thee cheque amount as compensation within 60 days.

2. The complainant's case in brief is that on 11.05.2012 the

complainant made a written agreement with the petitioner in presence of two

witnesses for purchase of plot No.38 measuring 216.66 Sq. yards in Te Tehsil hsil

Gharaunda, District Karnal for consideration amount of Rs.14,29,956/ Rs.14,29,956/- for said

plot and made payment in advance of Rs.4,50.000/ Rs.4,50.000/- on 11.05.2012. Thereafter, after,

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the complainant made full payment and got executed an agreement dated

23.10.2012 amounting to Rs.14,29,956/-

R and made balance payment of

Rs.9,79,956/- for said plot on 23.10.2012. However, the petitioner did not get

executed registered deed in his name and told the complainant that registration

deeds are banned by the government and will be executed shortly. When the

complainant visited the site, he came to know that the said plot has been sold

fraudulently to some other person, person, without the consent and knowledge of the

complainant. Thereafter, when the complainant asked the petitioner to return

the above-mentioned mentioned plot or make payment of the said plot, the

petitioner/accused did not care and after some time, he refused to make the

payment or return the plot. When the complainant made a complaint bearing

No.130371 dated 12.12.2019 against the petitione petitioner, r, a compromise dated

23.12.2019 was effected between the parties for an amount of Rs.18,32,000/ Rs.18,32,000/-,,

which was to be paid by the petitioner to the complainant, for which, he

delivered five post dated bank cheques for Rs.3,00,000/ Rs.3,00,000/-, Rs.3,32,000/-,,

Rs.4,00,000/-,, Rs.4,00,000/-

Rs.4,00,000/ and Rs.4,00,000/-- bearing Nos.386631, 386638,

386640, 386642, 386644 respectively, with affidavit duly attested and it was

fully assured that if any cheque will be bounced the complainant would be at

liberty to file complaint or take legal legal action against the petitioner. When the

complainant presented the cheque bearing No.386642 dated 30.03.2021 of

Rs.4,00,000/- for encashment, the same was returned dishonoured on account

of "Funds Insufficient" vide return memo dated 31.03.2021. Thus, thee

petitioner committed an offence punishable under Section 138 of the

Negotiable Instruments Act, 1881. Hence, this complaint.

3. Vide judgment and order dated 30.09.2024 passed by learned

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Judicial Magistrate Ist Class, Jind, the petitioner was sentenced to undergo

simple imprisonment for a period of nine months for commission of offence

punishable under Section 138 of Negotiable Instruments Act and was further

directed to pay compensation to the tune of Rs.

Rs.4,84,000/-.. However, it was

made clear that the amount, if any, already paid by the convict to the

complainant during the trial of the present case, be set off from the amount of

compensation. Thereafter, the petitioner preferred an appeal against the said

judgment of conviction and order of sentence be before fore the learned Additional

Sessions Judge, Jind.. The learned Appellate Court vide order dated 23.10.2024,,

suspended the sentence of the petitioner subject to depositing 20% of the

compensation amount within 60 days of passing of the order.

4. Learned counsel for the petitioner inter alia contends that the

learned lower Appellate Court failed to appreciate the facts in the right

perspective and imposed the condition to deposit 20% of the compensation and

such a condition is illegal, arbitrary and and in violation of the law as laid down by

the Hon'ble Supreme Court in Criminal Appeal Nos.2741 of 2023 (@

SLP(Crl.) Nos. 4927 of 2023 Jamboo Bhandari vs. M.P. State Industrial

Development Corporation Ltd. and others, others, decided on 04.09.2023. Speaking

through h Justice Abhay S. Oka, it has been held as follows:

follows:-

"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 ass 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.

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7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an petitioner who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Cour Courtt 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. Having heard learned counsel for the petitioner and after perusing

the judgment passed in Jamboo Bhandari (supra) (supra), the lower Appellate Court

was required to consider consider whether the present case falls in the exception or not.

The impugned order dated 23.10.2024, whereby, the condition of depositing

20% of compensation amount has been imposed for granting suspension of

sentence is hereby set aside. The learned lower Appel Appellate late Court is directed to

re-examine examine the case after granting an opportunity to the petitioner to make

submissions regarding the exceptional circumstances and decide whether it is

an appropriate case that warrants waiver of the requirement of deposit of 20%

of the compensation awarded by learned trial Court.

6. The matter is remanded back to the learned lower Appellate Court

with a direction to decide the matter afresh in accordance with law in the light