Case Note & Summary
The petitioner, original accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, was convicted by the Judicial Magistrate, First Class, Latur, and sentenced to simple imprisonment for three months and directed to pay compensation of Rs.1,17,314 to the complainant. Aggrieved, the petitioner filed an appeal before the Additional Sessions Judge, Latur, along with an application for condonation of delay and an application (Exh.5) for suspension of substantive sentence. The learned Adhoc Additional Sessions Judge-2, Latur, by order dated 9.6.2010, suspended the substantive sentence on condition that the petitioner deposit the entire compensation amount in eleven monthly installments, with the first installment to be deposited on or before 10.6.2010. The petitioner challenged this condition by filing a writ petition under Article 227 of the Constitution of India, arguing that the condition was unreasonable and beyond the appellate court's power. The High Court observed that while the appellate court has discretion to impose conditions for suspension of sentence, such conditions must be reasonable and not amount to pre-judging the appeal. The court noted that the condition to deposit the entire compensation in installments effectively compelled the petitioner to pay the compensation before the appeal was heard, which was not contemplated under Section 357(2) CrPC. The High Court held that the appellate court should not impose onerous conditions that defeat the purpose of suspension of sentence. Accordingly, the High Court quashed the condition of depositing the compensation amount and directed the appellate court to reconsider the application for suspension of sentence afresh without imposing such a condition. The petition was allowed, and the rule was made absolute.
Headnote
A) Criminal Procedure Code - Suspension of Sentence - Condition of Pre-deposit of Compensation - Section 357(2) CrPC - The appellate court while suspending substantive sentence under Section 138 NI Act imposed condition to deposit entire compensation of Rs.1,17,314 in 11 monthly installments - Held that such condition is unreasonable and beyond the scope of Section 357(2) CrPC as it amounts to enforcing payment before final adjudication of appeal (Paras 5-7).
B) Negotiable Instruments Act, 1881 - Dishonour of Cheque - Compensation - Section 138 - The trial court convicted accused and directed payment of compensation - Appellate court suspended sentence on condition of depositing compensation in installments - Held that the appellate court should not impose onerous conditions that effectively compel payment before appeal is heard (Paras 5-7).
Issue of Consideration
Whether the appellate court can impose a condition of depositing the entire compensation amount in installments while suspending the substantive sentence under Section 138 of the Negotiable Instruments Act, 1881, and whether such condition is reasonable and within the court's power.
Final Decision
The High Court allowed the petition, quashed the condition of depositing the compensation amount imposed by the appellate court, and directed the appellate court to reconsider the application for suspension of sentence afresh without imposing such a condition. The rule was made absolute.
Law Points
- Suspension of sentence
- condition of pre-deposit of compensation
- Section 357(2) CrPC
- Section 138 Negotiable Instruments Act
- 1881
- appellate court's power
- reasonableness of conditions
Case Details
2010 LawText (BOM) (07) 33
Criminal Writ Petition No. 573 of 2010
Shri C.R. Deshpande for petitioner, Shri Mukul Kulkarni for respondent no.1, Smt. B.R. Khekale, A.P.P. for respondent no.2
M/s Arunkumar s/o Vishwanathappa Devane, through its proprietor Mr. Umakant s/o Vishwanathappa Devane
M/s Chinnubhai Chimanlal & Co., through its proprietor Mr. Sameer s/o Lalit Shah & anr.
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Nature of Litigation
Criminal writ petition under Article 227 of the Constitution of India challenging the condition imposed by the appellate court while suspending substantive sentence in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The petitioner sought quashing of the condition to deposit the entire compensation amount in installments and a direction to deposit the amount in court.
Filing Reason
The petitioner was aggrieved by the condition imposed by the learned Adhoc Additional Sessions Judge-2, Latur, while suspending the substantive sentence, requiring deposit of the entire compensation amount of Rs.1,17,314 in eleven monthly installments.
Previous Decisions
The Judicial Magistrate, First Class, 5th Court, Latur, convicted the petitioner under Section 138 of the Negotiable Instruments Act, 1881, and sentenced him to simple imprisonment for three months and directed payment of compensation of Rs.1,17,314. The appellate court suspended the substantive sentence on condition of depositing the compensation in installments.
Issues
Whether the appellate court can impose a condition of depositing the entire compensation amount in installments while suspending the substantive sentence under Section 138 of the Negotiable Instruments Act, 1881?
Whether such condition is reasonable and within the court's power under Section 357(2) CrPC?
Submissions/Arguments
The petitioner argued that the condition to deposit the entire compensation amount in installments is unreasonable and beyond the appellate court's power, as it effectively compels payment before the appeal is heard.
The respondent no.1 supported the condition, arguing that it was within the court's discretion to ensure compliance with the compensation order.
Ratio Decidendi
The appellate court while suspending sentence under Section 138 NI Act cannot impose a condition that effectively compels payment of compensation before the appeal is heard, as it is beyond the scope of Section 357(2) CrPC and is unreasonable.
Judgment Excerpts
The learned Adhoc Additional Sessions Judge-2, Latur, passed an order on the said application Exh.5 on 9.6.2010 and thereby suspended the substantive sentence imposed upon the petitioner herein, on the condition that the petitioner to deposit the entire compensation amount of Rs.1,17,314 in eleven monthly installments...
The condition imposed by the appellate court is unreasonable and beyond the scope of Section 357(2) CrPC as it amounts to enforcing payment before final adjudication of appeal.
Procedural History
The petitioner was convicted by the Judicial Magistrate, First Class, Latur, on 5.5.2010 under Section 138 NI Act. He appealed to the Additional Sessions Judge, Latur, and filed an application for suspension of sentence. The appellate court on 9.6.2010 suspended the sentence on condition of depositing compensation in installments. The petitioner then filed the present writ petition under Article 227 of the Constitution of India challenging that condition.
Acts & Sections
- Constitution of India: Article 227
- Negotiable Instruments Act, 1881: Section 138
- Code of Criminal Procedure, 1973 (CrPC): Section 357(2)
