Case Note & Summary
The applicant, Rahul Kisan Khande, was convicted under Section 138 of the Negotiable Instruments Act, 1881 by the learned Magistrate, First Class, Rahata, in Summary Criminal Case No. 1294 of 2015. The Magistrate sentenced him to one year simple imprisonment and directed him to deposit Rs. 6,50,000/- as compensation under Section 357 Cr.P.C. The applicant appealed against this conviction and sentence before the Additional Sessions Judge, Kopargaon, in Criminal Appeal No. 46 of 2018. The appellate court admitted the appeal and passed an order on 22-11-2018 directing the applicant to deposit Rs. 2,00,000/- towards part of the compensation by the next date, as a condition for suspension of sentence. The applicant challenged this order by filing a Criminal Application under Section 482 Cr.P.C. before the Bombay High Court. The High Court heard both sides and held that the condition of pre-deposit imposed by the appellate court was illegal and not warranted at the stage of admission. The court observed that the appellate court had not yet heard the appeal on merits and could not pre-judge the matter by requiring deposit of compensation. The High Court quashed the impugned order and directed the appellate court to hear the appeal on merits without insisting on any pre-deposit. The application was allowed and the rule was made absolute.
Headnote
A) Criminal Procedure Code - Suspension of Sentence - Section 389 Cr.P.C. - Condition of Pre-Deposit - The appellate court while suspending sentence under Section 389 Cr.P.C. cannot impose a condition of depositing part of the compensation awarded under Section 357 Cr.P.C. without hearing the appeal on merits. Such a condition is illegal and amounts to pre-judging the appeal. (Paras 2-5)
B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Compensation - Section 357 Cr.P.C. - The direction to deposit Rs. 2,00,000/- as a condition for suspension of sentence was set aside as the appellate court had not yet heard the appeal on merits. The High Court held that the condition was not warranted at the stage of admission of appeal. (Paras 3-5)
Issue of Consideration
Whether the appellate court can impose a condition of depositing part of the compensation amount under Section 357 Cr.P.C. while suspending the sentence under Section 389 Cr.P.C. in an appeal against conviction under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The High Court allowed the application, quashed the impugned order dated 22-11-2018, and directed the appellate court to hear the appeal on merits without insisting on any pre-deposit. Rule made absolute.
Law Points
- Section 357 Cr.P.C. compensation cannot be a condition for suspension of sentence under Section 389 Cr.P.C.
- Section 138 NI Act appeal
- pre-deposit condition illegal
- appellate court's discretion under Section 389 Cr.P.C.
Case Details
2019 LawText (BOM) (04) 48
Criminal Application No. 3623 of 2018
Mr. Shaikh Mazhar A. Jahagirdar for applicant, Mr. M.L. Sangeet for respondent
Samir Salim Shaikh (Dead) through Salim Bakshu Shaikh
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Nature of Litigation
Criminal application under Section 482 Cr.P.C. to quash an order of the appellate court directing pre-deposit of compensation as a condition for suspension of sentence.
Remedy Sought
The applicant sought quashing of the order dated 22-11-2018 passed by the Additional Sessions Judge, Kopargaon, directing deposit of Rs. 2,00,000/- towards part of compensation.
Filing Reason
The applicant was convicted under Section 138 NI Act and sentenced to one year imprisonment and compensation of Rs. 6,50,000/-. In appeal, the appellate court directed deposit of Rs. 2,00,000/- as a condition for suspension of sentence.
Previous Decisions
The Magistrate convicted the applicant and ordered compensation. The appellate court admitted the appeal and imposed the pre-deposit condition.
Issues
Whether the appellate court can impose a condition of depositing part of the compensation amount under Section 357 Cr.P.C. while suspending the sentence under Section 389 Cr.P.C. in an appeal against conviction under Section 138 of the Negotiable Instruments Act, 1881.
Submissions/Arguments
The applicant argued that the condition of pre-deposit was illegal and not warranted at the stage of admission of appeal.
The respondent supported the order of the appellate court.
Ratio Decidendi
The appellate court while suspending sentence under Section 389 Cr.P.C. cannot impose a condition of depositing part of the compensation awarded under Section 357 Cr.P.C. without hearing the appeal on merits. Such a condition is illegal and amounts to pre-judging the appeal.
Judgment Excerpts
The applicant, by invoking remedy under Section 482 of the Code of Criminal Procedure, preferred present Criminal Application seeking relief to quash and set aside the impugned Order (below Exhibit-1) dated 22-11-2018, passed by learned Additional Sessions Judge, Kopargaon, in the proceeding bearing Criminal Appeal No. 46 of 2018, thereby directing the applicant to deposit amount of Rs. 2,00,000/- towards part of compensation awarded by the learned Magistrate.
The appellate court had not yet heard the appeal on merits and could not pre-judge the matter by requiring deposit of compensation.
Procedural History
The applicant was convicted under Section 138 NI Act by the Magistrate, First Class, Rahata, in Summary Criminal Case No. 1294 of 2015. He appealed to the Additional Sessions Judge, Kopargaon, in Criminal Appeal No. 46 of 2018. The appellate court admitted the appeal and on 22-11-2018 passed an order directing the applicant to deposit Rs. 2,00,000/- towards part of compensation. The applicant then filed the present Criminal Application under Section 482 Cr.P.C. before the Bombay High Court.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): 357, 389, 482
- Negotiable Instruments Act, 1881 (NI Act): 138
