Bomaby High Court has observed that the provision ex facie does not make it imperative that such direction to deposit 20% amount to be made condition precedent for suspending the sentence.
A bench of Justice Patil has passed the order in the case titled as Ram S/O. Sundarlal Gujarathi vs Mahavir Nagri Co-Op. Society Ltd. 28.08.2019.
By the impugned order, the learned Additional Sessions Judge directed the petitioner to deposit 20% of the cheque amount, however he has made it a condition precedent to suspend the sentence imposed upon accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
The learned advocate for petitioner pointed out that the impugned order in a way impedes upon the powers of the Appellate Court to suspend the sentence conferred upon it under Section 389 of the Cr.P.C. By virtue of Section 148 of the Negotiable Instruments Act which has been introduced 2 16 cri wp 1322.19.odt by way of recent amendment, the Appellate Court is obliged to direct the accused to deposit the 20% of the amount of fine or compensation. It nowhere makes it obligatory on the part of the Appellate Court to make it a condition precedent for suspending the sentence. The learned advocate submits that since the impugned order has been passed on 17.07.2019 and the petitioner is expected to deposit 20% of the cheque amount within a period of 60 days therefrom, his right to seek suspension of sentence under Section 389 of the Cr.P.C. would become infructuous and even the petition would be rendered useless. Therefore the petitioner may be directed to deposit 5% of the cheque amount and the sentence may be suspended by way of interim relief.
High Court stayed the order saying "Indeed, Section 148 of the N.I.A. Act requires the Appellate Court to call upon the appellant-accused to deposit 20% of the fine/compensation amount and there is no discretion left to the Appellate Court. However, simultaneously one cannot lose sight of the fact that the provision ex facie does not make it imperative that such direction to deposit 20% amount to be made condition precedent for suspending the sentence in exercise of the powers under Section 389 of the Cr.P.C".
Read the Order here:
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