the remedy before the appellate court challenging the order of
conviction shall not be onerous. In the present case even before
there being a verdict from the appellate Court, the appellate
Court has directed to deposit the entire amount which, in my view,
will be a onerous condition. By such condition, the right of appeal
cannot be defeated inasmuch as if such condition is not fulfilled
the petitioner will have to undergo jail sentence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION No. 174 OF 2015
Sau. Archana Pradip Badjate,V State of Maharashtra
CORAM : V .M. DESHPANDE, J.
DATED : 26.08.2015.
Citation: 2016 ALLMR(CRI)4817
Rule. Rule made returnable forthwith. Heard finally
by consent of parties, in view of the order passed by this Court on
24.2.2015 that the matter was to be decided finally at the stage
of admission.
2. Heard Shri Mahesh Rai, learned counsel for the
applicant, learned APP for respondent no. 1 and Shri Anthony,
learned counsel for respondent no. 2.
3. Proceedings for the offence punishable under Section
138 of Negotiable Instruments Act were initiated by respondent
no. 2 in the Court of J.M.F.C. at Wardha. The said proceedings
were registered as Summary Criminal Case No. 6325/12. The said
proceedings were required to be initiated by respondent no. 2
since, according to respondent no. 2, a cheque which was given in
favour of respondent no. 2 by the petitioner in discharge of her
legal liability for an amount of Rs.4,00,000/- was dishonoured by
her banker.
4. Summary Cri. Case No. 6325/12 was culminated into
an order of conviction of the present petitioner by the J.M.F.C.
Wardha on 03.1.2015. The learned Magistrate directed that the
petitioner shall undergo rigorous imprisonment for three months.
The learned Magistrate also directed the petitioner to pay Rs. Four
lac to the complainant by way of compensation within a period of
two months from the date of judgment, i.e. 03.1.2015.
5. Being dissatisfied with the said order of conviction
and sentence, statutory appeal was preferred by the petitioner
before the appellate Court at Wardha. Said appeal was registered
as Criminal Appeal No. 13 of 2015. Said appeal is still pending.
Along with the appeal, the petitioner had also preferred an
application for suspension of substantive jail sentence. The said
application is at Ex.5 on the record of appellate Court. The
learned Sessions Judge, Wardha, on 03.2.2015 suspended the
substantive jail sentence awarded by the trial Court on petitioner's
executing P.R. Bond of Rs.15,000/- with one solvent surety of like
amount and on following conditions that -
“ (i) the appellant-accused shall deposit the
compensation amount of Rs.1,00,000/- within three
weeks from the date of this order and should go on
paying rest of the amount in equal instalments @
Rs.50,000/- each month commencing from the date on
or before 1st of March, 2015, before this Court.
(ii) he shall regularly attend this Court on the
given dates till the appeal is disposed of.”
6. The petitioner was aggrieved by imposition of
condition no.(i). Therefore, she approached this Court by filing the
present writ petition.
7. On 24.2.2015 this Court stayed condition no. (i) in
the impugned order dated 03.2.2015 on the condition that the
petitioner shall deposit Rs. One lac within a period of two weeks
from 24.2.2015.
8. In compliance with the order dated 24.2.2015, the
petitioner has deposited an amount of Rs. One lac before the trial
Court. The said statement of such deposit is not controverted by
learned counsel for respondent no. 2. Thus, there is no dispute
about deposit of Rs. One lac, as directed by this Court and also
which was one of the conditions incorporated in the impugned
order dated 03.2.2015.
9. Part of the conditions of deposit of Rs. One lac while
suspending the substantive jail sentence is already fulfilled and
complied by the petitioner. Section 374 of Code of Criminal
Procedure confers right of appeal. The right is absolute one. In
that behalf, it would be useful to note the observations of the
Hon'ble Apex Court in the case of Dilip S. Dahanukar vs. Kotak
Mahindra Co. Ltd. & anr. reported in 2007 ALL MR (Cri) 1775
(SC). It would be useful to reproduce paragraphs 52 and 53 of
the said judgment. They read as under:
“52. Unfortunately, the Legislature has not made any
express provision in this behalf. In absence of any
express provision, the question must be considered
having regard to the overall object of a statute. We
have noticed hereinbefore that Article 21 of the
Constitution of India read with section 374 of Cri.P.C.
confers a right of appeal. Such a right is an absolute
one. In a case where a judgment of conviction has
been awarded, the Court can release a person on bail
having regard to the nature of offence but as also the
other relevant factors including its effect on society. A
person upon arrest may have to remain in jail as an
under trial prisoner. So would a person upon
conviction. A person may also have to remain in jail, in
the event he defaults in payment of fine, if he is so
directed. But when a direction is issued for payment of
compensation, having regard to sub-section (2) of
section 357 of the Code, the application thereof should
ordinarily be directed to be stayed. It will, therefore, be
for the Court to stay the operation of that part of the
judgment whereby and whereunder compensation has
been directed to be paid, which would necessarily
mean that some conditions therefor may also be
imposed. A fortiori a part of the amount fo
compensation may be directed to be deposited, but the
same must be a reasonable amount.
53. An order may not be passed which the appellant
cannot comply with resulting him being sent to prison.
Appellate Court, in such cases, must make an
endeavour to strike a balance. Section 421 of the Code
of Criminal Procedure may take recourse to, but
therefor he cannot be remanded to custody.”
10. Thus, it is clear that the right in favour of the
petitioner under Section 374 of Code of Criminal Procedure is
absolute one. The judgment and order of conviction has not
reached its finality since its correctness is questioned before the
appellate Court. The appeal challenging the conviction filed by
the petitioner is still pending. The learned trial Magistrate did not
impose any fine upon the petitioner. The question of
compensation will come into play only after the conclusion by the
appellate Court that the present petitioner is guilty of offence
under Section 138 of Negotiable Instruments Act.
11. The condition imposed upon the appellant who seeks
the remedy before the appellate court challenging the order of
conviction shall not be onerous. In the present case even before
there being a verdict from the appellate Court, the appellate
Court has directed to deposit the entire amount which, in my view,
will be a onerous condition. By such condition, the right of appeal
cannot be defeated inasmuch as if such condition is not fulfilled
the petitioner will have to undergo jail sentence.
12. Petitioner has already shown her bona fides by
depositing Rs. One lac. In that view of the matter, in my view, the
present writ petition is required to be allowed to the extent of
directing the petitioner in depositing Rs.50,000/- in equal
instalments. It is made clear that Rs. One lac, which is deposited
by the petitioner before the appellate Court, shall be invested by
the appellate Court so that there will not be loss of interest
accrued upon such deposit. Hence, the order directing the
petitioner to deposit amount of Rs.50,000/- is hereby quashed and
set aside. Rule is made absolute in above terms.
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