Punjab-Haryana High Court
Rajinder Singh vs Vijay Kumar on 31 January, 2025
Neutral Citation No:=2025:PHHC:014916
CRR-1623-2024 (O&M) -1
112
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRR-1623-2024 (O&M)
Date of Decision:-31.01.2025
RAJINDER SINGH ... PETITIONER
VERSUS
VIJAY KUMAR ... RESPONDENT
CORAM:- HON'BLE MR. JUSTICE SANJIV BERRY.
Present:- Mr. Kuldip Singh, Advocate for the petitioner.
*****
SANJIV BERRY, J.(ORAL)
CRM-34832-2024
This is an application seeking condonation of delay of 12 days in
filing the main appeal.
2. Heard.
3. Keeping in view the averments made in the application, delay of
12 days in filing the appeal is condoned subject to just exceptions.
4. Application stands disposed of.
MAIN CASE
The instant petition has been preferred by the petitioner for setting
aside the impugned order dated 18.05.2024 passed by learned Additional
Sessions Judge, Fazilka, in CRA No. 199 of 2024 titled as 'Rajinder Singh
Versus Vijay Kumar', which is preferred by the petitioner against the judgment
of conviction (Annexure P-1) dated 25.04.2024 passed by learned Additional
Chief Judicial Magistrate, Fazilka, in NACT No.728 of 2021 titled 'Vijay
Kumar Versus Rajinder Singh', filed by the respondent under Section 138 of
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Negotiable Instruments Act, vide which, after admitting the application and
while deciding the application for suspension of sentence, the petitioner was
directed to deposit 20% of the compensation amount within two months 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, Fazilka, dated 18.05.2024 is
illegal and arbitrary in nature having been passed without 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 25.04.2024 (Annexure P-1), the learned appellate Court has
erroneously directed the petitioner to deposit 20% of the compensation amount
within two months 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
18.05.2024.
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
cheque amounting to ₹3,00,000/- to the respondent and on presentation the
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same was dishonoured by the Bank with the remarks "funds insufficient". After
conclusion of trial, Additional Chief Judicial Magistrate, Fazilka, convicted the
petitioner vide judgment of conviction dated and order of sentence dated
25.04.2024 (Annexure P-1) and aggrieved by the same the petitioner had filed
the appeal bearing No. CRA-199-2024 pending in the Court of learned
Additional Sessions Judge, Fazilka. The learned appellate Court while
admitting the appeal ordered suspension of sentence but with the condition that
the petitioner will deposit 20% of the compensation amount within two months.
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
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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 18.05.2024 has not discussed or considered as to whether the case of the
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 18.05.2024 passed by
learned Additional Sessions Judge, Fazilka, 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
31.01.2025
kanika
i) Whether speaking/reasoned? Yes/No
ii) Whether reportable? Yes/No
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