Rajasthan High Court - Jodhpur
Pradeep Tusawda vs Bheraram Khatik (2024:Rj-Jd:43121) on 21 October, 2024
[2024:RJ-JD:43121]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 7315/2024
Pradeep Tusawda S/o Shri Ummedaram, Aged About 33 Years,
R/o 1157, Near Mohan Bhopa Ki Dipi, Society Nagar Pali (Raj)
----Petitioner
Versus
Bheraram Khatik S/o Pratapram, R/o 1151, Society Nagar, Pali
(Raj)
----Respondent
For Petitioner(s) : Mr. Bhuwaneshwar Singh Sisodia
For Respondent(s) : Mr. Vikram Singh Rajpurohit, PP
HON'BLE MR. JUSTICE ARUN MONGA
Order
21/10/2024
1. Grievance of the petitioner herein is against the order dated
25.09.2024, passed by the learned District and Sessions Judge,
Pali in Criminal Appeal No.27/2024 against his conviction under
Section 138 of the Negotiable Instruments Act, 1881, whereby the
application filed by the petitioner for waiving of condition of
depositing 20% of fine amount, was partly allowed converting the
same to deposit 20% (Rs.1,92,400 /-) of the cheque amount as
interim compensation.
2. The impugned order dated 11.03.2024 of learned Sessions
Court is primarily premised on the reasoning that as per Section
148 Negotiable Instruments Act, suspension of sentence can only
be allowed if a minimum of at least 20% of the fine amount is paid
to the complainant.
3. A perusal thereof reveals that the learned Sessions court fell
in error in directing interim payment of the 20% of cheque
[2024:RJ-JD:43121] (2 of 4) [CRLMP-7315/2024]
amount under the impression that the provision contained under
Section 148 of N.I. Act is absolute in nature and without
compliance thereof, the application of the petitioner seeking
suspension of his sentence could not have been allowed. In this
regard, reference may be had to Apex Court judgment rendered in
Jamboo Bhandari v. M.P. State Industrial Development
Corporation Ltd. & Ors. : (2023) 10 SCC 446. The relevant
thereof of is reproduced here in below :-
"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.
8. The submission of the learned counsel appearing for the
original complainant is that neither before the Sessions Court
nor before the High Court, there was a plea made by the
appellants that an exception may be made in these cases and
the requirement of deposit or minimum 20% of the amount be
dispensed with. He submits that if such a prayer was not made
by the appellants, there were no reasons for the Courts to
consider the said plea.
9. We disagree with the above submission. When an accused
applies under Section 389 of the Cr.P.C. for suspension of
sentence, he normally applies for grant of relief of suspension
of sentence without any condition. Therefore, when a blanket
order is sought by the appellants, the Court has to consider
whether the case falls in exception or not.
10. In these cases, both the Sessions Courts and the High Court
have proceeded on the erroneous premise that deposit of
minimum 20% amount is an absolute rule which does not
accommodate any exception.
11. The learned counsel appearing for the appellants, at this
stage, states that the appellants have deposited 20% of the
compensation amount. However, this is the matter to be
examined by the High Court."
[2024:RJ-JD:43121] (3 of 4) [CRLMP-7315/2024]
4. Learned counsel for the petitioner submits that the petitioner
is a poor scrap dealer and he is barely able to make two square
meals for him and his family. Being in financial dire straights, he is
not in a position to deposit such a huge amount i.e. 20%
(Rs.1,92,000/- as compensation) of the total amount of
Rs.9,62,000/-.
5. In the premise, he shall have to necessarily surrender for
being taken into custody. Therefore, he would not even be able to
defend his appeal during the pendency thereof. He further submits
that the liberty of the petitioner is at stake.
6. While, on the other hand, he is sanguine that he has a good
case in appeal. He will succeed in the same, but due to his
inability to pay he is not able to defend himself in the further
proceedings until he complies with the order impugned herein.
7. Having heard the learned counsel for the petitioner, I am in
agreement with the arguments canvassed by him.
8. In the premise, after perusing the impugned order and the
case file, I am of the view that looking at the financial condition of
the petitioner, directing him to deposit 20% of the amount as per
impugned order shall result in jeopardizing his appeal being
dismissed on account of non-compliance of the condition of
deposit. He seems to be in financial distress and has to be granted
indulgence in the larger interest of justice to enable him to defend
himself in the pending appeal.
9. As an upshot, keeping in view the ratio of Apex Court
judgment in Jamboo Bhandari (supra) and in the light of the facts
and circumstances of the case the impugned order dated
25.09.2024 is modified and condition of pre-deposit of 20% of
[2024:RJ-JD:43121] (4 of 4) [CRLMP-7315/2024]
interim compensation, is set aside. Learned Sessions Judge shall
proceed with hearing of the appeal without insisting for pre-
deposit and dispose of the same in accordance with law.
10. Disposed of accordingly.
11. Pending application(s), if any, also stand(s) disposed of.
(ARUN MONGA),J
96-DhananjayS/-
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