Habib Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:133044

Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 19916 of 2025 Applicant :- Habib Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajneesh Kumar Sharma Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.

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Vakalatnama filed by Si Rakesh Chandra Dwivedi (AOR No. A/R 0594/2012) on behalf of opposite party no.2 is taken on record.

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Supplementary affidavit filed today is taken on record.

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Heard Sri Rajneesh Kumar Sharma, learned counsel for the applicant as well as learned AGA for the State and Sri Rakesh Chandra Dwivedi, learned counsel for opposite party no.2.

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A joint statement has been made by learned counsel for the parties that they do not propose to file any additional affidavit and the application be decided on the basis of documents available on record at this stage.

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With the consent of the parties, the present application is being decided at the fresh stage.

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This is an application filed U/s 528 BNSS by the applicant for granting exemption from depositing 20 per cent of the fine amount as directed by the District and Sessions Judge, District Amroha vide order dated 12.05.2025 in Criminal Appeal no. 46 of 2025 U/s 138 of N.I. Act (Habib vs. State of U.P. and another).

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The case of the applicant is that post lodging of the proceedings U/s 138 of N.I. Act, the applicant came to be convicted by the court of Additional CJM, Amroha on 10.04.2025 in warrants or summons in criminal case no. 2119 of 2020 complaint case no. 1311 of 2023 (Ram Kishun vs. Habib) whereby rigorous imprisonment of two years and fine to the tune of 15 lacs was imposed. Assailing the said order, the appellant preferred criminal appeal no. 46 of 2025 along with an application for staying of conviction/ sentence and recovery of the said amount. On the said application on 12.05.2025 an order came to be passed by In-charge Sessions Judge, Amroha in criminal appeal no. 46 of 2025 whereby appellant was directed to deposit 20 per cent of 15 lac so determined by the court below. Questioning the order dated 12.05.2025 directing the appellant to deposit 20 per cent of the total amount of Rs.15 lac of the fine so determined by the trial court, the present

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application has been preferred.

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This Court on presentation of the present application on 14.07.2025 proceeded to pass the following order:

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"1. Contention of learned counsel for the applicant is that postdishonouring of a cheque, the applicant stood convicted by virtue of an order passed by the IInd Addl. Chief Judicial Magistrate, Amroha on 10.04.2025. Thereafter, the applicant preferred a Criminal Appeal No. 46 of 2025 for stay of conviction as well as recovery and an order came to be passed by the Sessions Judge, District Amroha on 12.05.2025 directing the applicant to deposit 20% of the total amount of Rs.15,00,000/- being Rs.3,00,000/- as compensation.

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2. Learned counsel for the applicant seeks to rely upon the decision of the Hon'ble Apex Court in Jamboo Bhandari Vs. M.P. State Industrial Corporation Ltd., (2023) 0 SC 8855 and Muskan Enterprises and Another vs. State of Punjab and another, Criminal Appeal No.5491 of 2024 so as to contend that as a matter of rule without considering the exceptional circumstances, the said blanket direction has been passed. Learned counsel for the applicant as per the instructions received from his client submits that the applicant is agreeable to deposit 10% of the fine amount.

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3. Matter requires consideration.

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4. Notice on behalf of opposite party no.1 has been accepted by the learned A.G.A.

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5. Issue notice to Opposite Party no.2.

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6. Opposite Party No.2 may file its response within six weeks. Rejoinder, if any, may be filed within two weeks thereafter.

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7. List as fresh on 05.08.2025 at 02:00 P.M.

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8. Till 05.08.2025, the effect and operation of order dated 12.05.2025 passed in Crl. Appeal No.46 of 2025 passed by the Incharge Sessions Jude, Amroha in so far as it pertains to directing the applicant to deposit 20% of the fine amount as determined by the court below shall remain stayed, subject to payment of 10% of the fine amount by 18.07.2025.

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9. The interim protection shall stand vacated in case the payment is not made and the proof of the same is submitted before this Court. "

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Learned counsel for the applicant has submitted that though in pursuance of the order so referred to above the applicant had tried to deposit 10 per cent of the amount but the same could not be deposit. However, he is willing to deposit the said amount in case some time be accorded. Learned counsel for the applicant on merit has sought to argue that the order dated 12.05.2025 passed in Criminal Appeal no. 46 of 2025 passed by In-charge Sessions Judge, Amroha cannot be sustained for a single moment particularly when though the power vest with the appellate court while hearing an appeal against conviction

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U/s 148 of N.I. Act to direct for deposit of 20 per cent of the fine amount, however before arriving to a decision, a consideration is to be made whether the case of the applicant falls under exceptional category or not. He seeks to rely upon the decision of Jamboo Bhandari vs. M.P. State Industrial Development Corporation LTD and ors, 2023 Live Law (SC) 776 and in the case of Muskan Enterprises and Another vs. State of Punjab and another, passed in Criminal Appeal No. 5491 of 2024 decided on 19, December, 2024.

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Learned AGA as well as the counsel appearing for the opposite party no.2 submits that the sword of conviction is hanging on the neck of the applicant. However, they could not dispute the fact that there is no consideration with regard to the case of the applicant whether it falls under exceptional category or not has been taken into account. According to them the order dated 12.05.2025 is set aside in so far as it directs to deposit 20 per cent and as the applicant has volunteered to deposit 10 per cent, the same be deposited and the appeal be directed to be decided within the time bound period.

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Learned counsel for the applicant has no objection to the same.

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I have heard the submissions so made across the bar and perused the record carefully.

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Section 148 of N.I. Act reads as under:

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"(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in appeal by the drawer against conviction under section 138, the appellate court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court:

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Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under Section 143A.

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(2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant.

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(3)The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:

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Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rest as published by the Reserve Bank of

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India, prevalent at the beginning of the relevant financial year, within sixty days from the date of order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant."

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A perusal of section 148 of N.I. Act would reveal that notwithstanding anything contained in the court of criminal procedure 1973 in an appeal by the drawer against conviction under section 138 of N.I. Act, the appellate court may order the appellant to deposit such sum which shall be minimum 20 per cent of fine awarded by the trial court. Though the power is vested with the appellate court to direct for deposit of 20 per cent of the amount of compensation as determined by the trial court but the Hon'ble Apex Court had the occasion to consider section 148 of N.I. Act and it was mandated that the case of the appellant who has preferred an appeal against conviction is to be considered with regard to payment of 20 per cent of compensation taking into account the fact as to whether the case falls under exceptional category or not. Apparently, in the present case it hand, the said exercise is lacking. In the case of Jamboo Bhandari (Supra) the Hon'ble Apex Court has observed as under:

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"6. What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded.

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7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 389 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.

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8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea.

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9. We disagree with the above submission. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not."

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The said principles is reiterated in the case of Muskan Enterprises (Supra).

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Considering the fact that the exercise with regard to the fact as to whether the case falls under exceptional category or not is lacking. The order cannot be sustained. At this juncture, learned counsel for the appellant on instructions and counsel appearing for opposite party no.2 on instructions submits that the applicant be permitted to deposit 10 per cent of the compensation amount as determined by the trial court and a direction be issued to the appellate court to decide the appeal within the time bound period. Accordingly, the application is being decided in the following terms:

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a. The order dated 12.05.2025 passed by In-charge Sessions Judge, Amroha in criminal appeal no. 46 of 2025 (Habib vs. State of U.P.) in so far as directs the applicant to deposit 20 per cent of the compensation amount out of the total Rs.15 lacs as determined by the court below i.e. Rs. 3 lacs is modified to deposit of 10 per cent of the total amount of compensation quantified by the trial court be Rs. 1,50,000/-.

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b. The rest of the order be upheld.

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c. The applicant shall deposit 10 per cent of the amount i.e. Rs.1,50,000/- out of Rs. 15 lac as determined by the trial court by 21.08.2025.

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d. Since a statement has been made by the counsel for the applicant and the counsel for opposite party no.2 as per the instructions from their clients that no unnecessary adjournments would be taken, thus the present application stands disposed of requiring the court below to decide the appeal within a time bound manner without granting unnecessary adjournments and in case any adjournments are granted, it should be an exceptional circumstances that too not beyond the stretch of seven days.

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In case, the said 10 per cent amount is not deposited by 21.08.2025, the benefit of the order will not be applicable.

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Order Date :- 5.8.2025 C. MANI

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Digitally signed by :- CHANDRAMANI VERMA High Court of Judicature at Allahabad

Habib v. State of U.P. and Another

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