Rajasthan High Court - Jodhpur
Kailash Nath vs State Of Rajasthan (2025:Rj-Jd:26668) on 30 May, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:26668]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 4607/2025
Kailash Nath S/o Ganesh Nath, Aged About 47 Years, R/o Chhoti
Bijoliya Currently Residing At Near Pathik College Bijoliya Ps
Bijoliya District Bhilwara (At Present Lodged In Jail Ajmer)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Pankaj S/o Radheshyam, R/o Bijoliya Ps Bijoliya District
Bhilwara
----Respondents
For Petitioner(s) : Ms. Rani Yogi, wife of the petitioner
Present-in-person Ms. Anmol Yogi, daughter of the
petitioner
For Respondent(s) : Mr. Shriram Chaudhary, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
30/05/2025
1. The instant criminal misc. Petition under Section 528 BNSS
has been preferred by the petitioner for quashing of the order
dated 20.02.2025 passed by the learned Additional District and
Session Judge No.3, Bhilwara in Criminal Appeal No. 67/2025 for
offence under Section 138 of Negotiable Instruments Act
(hereinafter to be referred as "NI Act") and further proceedings in
connection with the aforesaid case, by which the Appellate Court
ordered to deposit 20% of the cheque amount under Section 148
NI Act to the petitioner.
2. Briefly stating the facts of the case are that the complainant
filed a complaint under Section 138 of the NI Act against the
[2025:RJ-JD:26668] (2 of 4) [CRLMP-4607/2025]
petitioner, alleging dishonor of a cheque due to insufficient funds.
It is stated that the petitioner had borrowed a sum of ₹1,50,000/-
from the complainant for domestic purposes and issued a cheque
bearing No. 401583 dated 16.03.2019 for the said amount. Upon
presentation, the cheque was dishonored, and despite the
complainant serving a legal notice which was duly received by the
petitioner, no reply was filed by the petitioner.
2.1 The trial court took cognizance of the complaint and initiated
criminal proceedings. During the trial, the complainant appeared
and produced seven documents in support of his case. The
petitioner, in his statement under Section 313 CrPC, denied having
taken any loan and alleged that the cheque was misused after
being forged. After evaluating the evidence, the learned trial
court, vide judgment dated 24.01.2025, convicted the petitioner
under Section 138 of the NI Act and sentenced him to 1.5 years of
imprisonment along with a fine of ₹2,18,000/-, with an additional
3 months' imprisonment in case of default.
2.2 The petitioner filed an appeal along with an application for
suspension of sentence under Section 389 CrPC (corresponding to
Section 430 of BNSS), which was allowed vide order dated
20.02.2025 on the condition of depositing 20% of the cheque
amount within 60 days. Due to non-compliance, the petitioner was
sent to judicial custody. The petitioner, citing his poor financial
condition and the critical illness of his father, now challenges the
said order through a criminal miscellaneous petition.
[2025:RJ-JD:26668] (3 of 4) [CRLMP-4607/2025]
3. The wife and the daughter of the petitioner were present in
the Court. Heard them and Public Prosecutor appearing on behalf
of the State and perused the material available on record.
4. The grief of the petitioner would be that in view of the
mandate of law and the judgment passed by the Hon'ble Supreme
Court in the case of Jamboo Bhandari Vs. M.P. State
Industrial Development Corporation Ltd. reported (2023) 10
SCC 446, there is no need to direct the appellant to deposit 20%
of the cheque/fine/compensation amount as well as imposition of
a condition for deposition of 20% of the cheque/fine/compensation
amount is not imperative and mandatory.
5. After perusing the order under assail, it is evident that the
condition imposed vide order dated 20.02.2025, directing the
petitioner to deposit 20% of the cheque amount within 60 days
from the date of the passing of the order as a prerequisite for
suspension of sentence, cannot be construed as mandatory in
such a manner that it becomes a condition precedent for
continuation of the appeal proceedings. The petitioner, owing to
his acute financial constraints, has been unable to comply with the
said direction within the stipulated time, consequently, in
pursuance of the warrant issued by the learned Trial Court, the
petitioner has been taken into judicial custody.
5.1 The pivotal question that arises for consideration is whether
the inability of an accused to deposit the amount owing purely to
indigency can be a ground for his confinement.
[2025:RJ-JD:26668] (4 of 4) [CRLMP-4607/2025]
5.2 This Court is of the view that if such a condition is rigidly
enforced, it would result in a discriminatory scenario where an
affluent accused may secure his liberty and roam around freely
while a similarly placed indigent individual would be compelled to
remain in custody solely due to his impoverishment. Such an
outcome would be contrary to the principles of justice, equity, and
fairness. It is presumable that if the accused would financially
capacitated then certainly he must have deposited the ordered
amount till now since the order was passed in the month of
February this year. Thus, this Court is of the considered opinion
that the amount shall be waived of and the condition shall be
deleted from the order under assail.
6. In view of the above discussion, the instant petition deserves
to be and is hereby allowed. It is directed that the condition
requiring deposit of 20% of the cheque amount as incorporated in
the order dated 20.02.2025 passed by the learned Additional
District and Session Judge No.3, Bhilwara in Criminal Appeal No.
67/2025 shall be waived or deleted or abrogated from the order
under assail; rest of the condition of order above remains as it is.
The petitioner shall be released on bail upon furnishing bail bonds
as directed.
7. Stay Petition stands disposed of.
(FARJAND ALI),J
1-Mamta/-
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