Rajasthan High Court - Jodhpur
Asha Devi vs Narayan Keer (2024:Rj-Jd:43615) on 23 October, 2024
[2024:RJ-JD:43615]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 7408/2024
Asha Devi W/o Sh. Jivan Singh, Aged About 54 Years, Hadmala,
Kacchi Basti, Sabhagar Ke Pass, Bhoikhera, Tehsil And Distt.
Chittorgarh.
----Petitioner
Versus
1. Narayan Keer S/o Sh. Hazari Lal Ji Keer, Keer Kheda,
Sinchai Nagar Ke Pass, Teshil And Distt. Chittorgarh.
2. State Of Rajasthan, Through Pp
----Respondents
For Petitioner(s) : Mr. D.S. Gaur
For Respondent(s) : Mr. S.R. Choudhary, PP
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral)
23/10/2024
1. Grievance of the petitioner herein is against the order dated
18.09.2024, passed by the learned Sessions Judge, Chittorgarh, in
Criminal Appeal No.148/2024, whereby the application filed by
petitioner/accused under Section 389 Cr.P.C. in a pending appeal
against his conviction under Section 138 of the Negotiable
Instruments Act, 1881, was allowed subject to the deposit of 20%
amount of fine/compensation amount, failing which, the petitioner
was to undergo the sentence awarded by the trial court.
2. The impugned order of learned Sessions Court is primarily
premised on the reasoning that as per Section 148 Negotiable
Instruments Act, sentence can only be suspended if a minimum of
at least 20% of the fine amount is paid to the complainant.
[2024:RJ-JD:43615] (2 of 4) [CRLMP-7408/2024]
3. A perusal thereof reveals that the learned Sessions court fell
in grave error in directing interim payment of the 20% of fine
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 her 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.
[2024:RJ-JD:43615] (3 of 4) [CRLMP-7408/2024]
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."
4. Learned counsel for the petitioner submits that the petitioner
is a poor lady who works on daily wages as a Sweeper/Cleaner in
the houses. Being so, she is not in a position to deposit such a
huge amount i.e. 20% of Rs.1,,50,000/-, which comes to
Rs.30,000/-.
5. In the premise, she shall have to necessarily surrender for
being taken into custody. Therefore, she would not even be able to
defend her appeal during the pendency thereof. It is further
submitted that the liberty of the petitioner is at stake.
6. While, on the other hand, she is sanguine that she has a
good case in appeal. She will succeed in the same, but due to her
inability to pay she is not able to defend herself in the further
proceedings until she 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 her to deposit 20% of the amount as per
impugned order shall result in jeopardizing her appeal being
dismissed on account of non-compliance of the condition of
deposit. She seems to be in financial distress and has to be
granted indulgence in the larger interest of justice to enable her to
defend herself 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
[2024:RJ-JD:43615] (4 of 4) [CRLMP-7408/2024]
18.09.2024 is modified and condition of pre-deposit of 20% of
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
85-skm/-
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