2006 ALL MR (Cri) JOURNAL 3
(DELHI HIGH COURT)
H.R. MALHOTRA, J.
M/S. Vishnu Promoters Pvt. Ltd. & Ors.Vs.Smt. Sushila Singhal & Ors.
Cri.R.P.Nos.219-21 of 2005,Crl.R.P.Nos.222-24 of 2005
18th May, 2005
Petitioner Counsel: Mr. CHETAN SHARMA,Mr. SANJEEV TIWARI , Mr. AMIT OJHA
Respondent Counsel: Mr. G. D. CHOPRA , Mr. OM PRAKASH BHATIA
Negotiable Instruments Act (1881) S.138 - Criminal P.C. (1973), S.389 - Suspension of sentence - Appeal against conviction by accused - Sentence can be suspended subject to deposit of cheque amount in court - Amount when deposited to be kept in FDR. (Paras 4, 5)
2. Petitioners in this case stand convicted for commission of offence punishable under Section 138 of Negotiable Instruments Act. The Metropolitan Magistrate while recording conviction, sentenced the petitioner to pay fine of Rs.5,000/- besides directing them to pay compensation of Rs.2,50,000/- and Rs.6,00,000/- respectively in each case, as provided under Section 138 where Magistrate has been empowered to impose fine which may extend to twice the amount of the cheque. The conviction and sentence part was assailed by the petitioners by way of preferring appeal before Additional Sessions Judge. The petitioners also made application under S.389, Cr.P.C. seeking suspension of sentence and grant of bail till the disposal of the appeal. The learned Additional Sessions Judge while dealing with that application ordered for their release with the condition that the petitioners shall deposit the cheque amount in the Court and simultaneously ordered that the amount so deposited by them shall not be disbursed to the respondents till final decision. The order passed by the Additional Sessions Judge is being challenged in this Court only to the extent of the order of deposit of the cheque amount.
3. It is urged by learned counsel for the petitioners that this part of the order is contrary to law as the learned Additional Sessions Judge in fact acted as a civil Court for effecting recovery of the cheque amount and thus made it impossible for the petitioners to seek their release because of the stringent condition which even otherwise, according to learned counsel for the petitioner, could not have been imposed while making an order for grant of bail. To support such contention, he placed reliance on an authority reported in AIR 2000 Supreme Court 714 where too, a question had arisen if such onerous condition could be imposed at the time of dealing with the bail application. I have looked into that authority. Facts of that case are completely different from the one in hand. In that case during the course of investigation, the accused was ordered to pay a sum of Rs.2,00,000/- as a condition for bail whereas in the present case, the petitioners have since been found guilty for commission of offence punishable under Section 138 of the Negotiable Instruments Act which provision otherwise provides and empowers the Magistrate to impose fine which may extend to twice the amount of the cheque. The Magistrate while recording conviction and awarding sentence had slapped that fine on the petitioners. The Additional Sessions Judge before whom appeal was assigned had only ordered for deposit of the cheque amount and not double the amount of the cheque.
4. Learned counsel for the respondent while justifying the order of the Additional Sessions Judge placed reliance on a judgment of Supreme Court reported in (2001)2 Supreme Court Cases 416 where exactly similar question as mooted here in this case had arisen for consideration of the Apex Court. There too petitioners were found guilty under the provision of Section 138 of the Negotiable Instruments Act and had applied for suspension of sentence and grant of bail. The High Court while entertaining his revision ordered suspension of the sentence by imposing a condition that part of the fine shall be remitted in Court within a specified time. Petitioner being dissatisfied with that order approached the Supreme Court. Their Lordships Hon'ble Mr. Justice K. T. Thomas and Hon'ble Mr. Justice R. P. Sethi while dealing with that aspect of the matter observed as under :
"We feel that while suspending the sentence for the offence under Section 138 of the Negotiable Instruments Act it is advisable that the Court imposes a condition that the fine part is remitted within a certain period. If the fine amount is heavy, the Court can direct at least a portion thereof to be remitted as the convicted person wants the sentence to be suspended during the pendency of the appeal."
5. The authority cited by learned counsel for the respondent aptly applies to the case in hand. Even otherwise, Additional Sessions Judge did not order for deposit of fine as awarded by Metropolitan Magistrate, Additional Sessions Judge only ordered for deposit of cheque amount and that too was to remain in the Court and not to be paid to the respondent till the disposal of appeal. The learned Additional Sessions Judge at best could say that such amount be kept in fixed deposit receipt so that interest could be accrued on that amount and winning party could have had the benefit of that.
6. There is no impropriety, illegality or infirmity found in the impugned order and thus there is no reason to interfere while exercising the revisional jurisdiction of this Court. However, it is ordered that the amount when deposited shall be kept in FDR as observed above.