Rajasthan High Court - Jodhpur
Mukesh vs State Of Rajasthan (2024:Rj-Jd:38008) on 12 September, 2024
[2024:RJ-JD:38008]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 6087/2024
Mukesh S/o Shri Babu Lal Balai, Aged About 30 Years, R/o Near
Water Tank, Village Kalaynpura Tehsil Bijoliya, Dist. Bhilwara
(Presently Lodged In Dist. Jail, Bhilwara)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Hemraj Dhobi S/o Shri Ganpatlal Dhobi, R/o Kesarganj,
Tehsil Bijoliya, Dist. Bijoliya
----Respondents
For Petitioner(s) : Mr. Ramesh Purohit
For Respondent(s) : Mr. Vikram Singh Rajpurohit - PP
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral)
12/09/2024
1. Grievance of the petitioner herein is against the order dated
24.04.2024, passed by the learned Additional Sessions Judge
No.3, Bhilwara camp Mandalgarh in Criminal Appeal No.82/2024,
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 (hereinafter
referred to as the 'N.I. Act') was allowed subject to petitioner
depositing 20% of the fine amount as an interim compensation,
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 of the N.I. Act,
[2024:RJ-JD:38008] (2 of 4) [CRLMP-6087/2024]
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 grave error in directing interim payment of 20% of fine amount
under the impression that the provision contained under Section
148 of the 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
[2024:RJ-JD:38008] (3 of 4) [CRLMP-6087/2024]
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."
4. Learned counsel for the petitioner submits that the petitioner
is a cobbler and is unable to earn even two square meals a day.
He further submits that petitioner currently being in custody has
lost his livelihood and he is not in a position to deposit such a
huge amount of fine i.e. 20% (Rs.55,000/- as compensation) of
the total amount of Rs.2,75,000/-.
5. In the premise, he shall have to remain in custody and,
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
[2024:RJ-JD:38008] (4 of 4) [CRLMP-6087/2024]
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 light of the facts and
circumstances of the case, the impugned order dated 24.04.2024
is modified and the 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
232-AK Chouhan/-
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