Criminal Writ Petition No.684 of 2013

21st December, 2013

Petitioner Counsel: Mr. H.B. GAIKWAD
Respondent Counsel: Ms. T.H. UDESHI, Mr. V.T./K.V. BHOSKAR

Cases Cited:
Stanny Felix Pinto Vs. Jangid Builders Pvt. Ltd and another, 2001(1) ALL MR 852 (S.C.)=(2001) 2 SCC 416 [Para 5]

JUDGMENT

JUDGMENT :- Rule. Rule, returnable forthwith. Heard finally by consent of the parties.

2. By the present petition under Articles 226 r/w 227 of the Constitution of India, the petitioner, a convict in Summary Criminal Complaint Case No.21393/2011 of 8th Court of Judicial Magistrate, First Class, Nagpur, has assailed order dated 5.4.2013 passed by the Court of Session directing him to deposit entire fine amount awarded by the trial court for suspending the sentence imposed upon him and so also further order dated 8.4.2013 declining to reduce the said fine amount prayed by the petitioner vide another application Exh.5 preferred before the Court of Session.

3. The petitioner was tried by the trial court upon the complaint made by respondent no.2 of the petitioner having committed an offence under Section 138 of the Negotiable Instruments Act. The proceeding before the trial court were culminated into the order of conviction of the petitioner for commission of such offence and the trial court sentenced him to suffer R.I. for one month and ordered to pay fine of Rs. 1 Lac and in-default of payment of fine to suffer S.I. for one month. Amongst other, the trial court ordered for payment of fine amount recovered from petitioner to the respondent.

4. The petitioner-appellant intended to assail the said judgment and order of conviction and sentence by filing an appeal. However, as the delay had occurred in preferring such an appeal, within the period of limitation prescribed, the appellant presented such an appeal along with an application for condonation of delay occurred. The appellant also presented an application for suspension of the sentence imposed upon him and for releasing him on bail. The proceedings for condonation of delay are pending before the appellate court. However, the appellate court suspended the substantive sentence up till decision on the application for condonation of delay preferred, subject to petitioner depositing entire amount of fine as ordered by the trial court. The appellate court also ordered the release of the appellant on execution of P.R. Bond in the sum of Rs.15,000/- till disposal of the proceedings for condonation of delay. The appellant, thereafter, moved another application Exh.5 for relaxation and modification of the order and particularly part therein of depositing the entire amount of fine. The appellate court rejected the said application amongst other observing that relaxation being sought regarding the deposit the amount of fine and not that of compensation, the appellant has to pay the entire fine. Thus, the appellate court rejected the prayer on the count of relaxation being sought for depositing of fine amount.

5. Mr. Gaikwad, learned counsel for the petitioner, by placing reliance upon the decision of the Apex Court in the case of Stanny Felix Pinto .vs. Jangid Builders Pvt. Ltd and another, reported in (2001) 2 SCC 416 : [2001(1) ALL MR 852 (S.C.)], submitted that the ratio of the said decision indicates that in proper cases even the condition of depositing entire fine amount can be relaxed. The said submission appears to be in consonance with the ratio of the said decision. Mr. Gaikwad, learned counsel, submitted that considering the financial status of the petitioner and the amount of fine ordered, the condition of depositing entire fine amount is onerous and as such in event of petitioner being unable to deposit such amount, he will have to undergo the default sentence, as ordered by the trial court. It is submitted that in event of petitioner being successful in a proceeding taken by him for challenging the order of conviction, then and in the meanwhile, if he has to undergo the sentence in default or the other substantive sentence, then the same would have practically effect of defeating the right of an appeal conferred upon him.

6. Mr. Bhoskar, learned counsel for respondent no.2, submitted that respondent no.2 has no objection for relaxing the condition of depositing the entire fine amount, but the proceeding before the appellate court may be expedited.

7. In the premises aforesaid, the order passed by the appellate court upon the application for suspension of sentence is modified to the extent of appellant-petitioner depositing further amount of Rs.25,000/- before the appellate court within a period of two weeks from today. The rest of the conditions imposed by said order stand unmodified. The application Exh.5 and the application for suspension of sentence preferred by the appellant stand disposed of with such a modification in the original order passed by the appellate court. The appellate court is directed to dispose the proceeding pending before it for condonation of delay as early as possible and in any event within a period of three months from the receipt of this order and so also in event of the continuance of further proceeding before the said court due to the decision arrived, then such a proceeding also as early as possible and in any event within a period of six months from the date of this order. The petition stands disposed of accordingly.

8. Rule is made absolute in the aforesaid terms.

Ordered accordingly.