Partly allowed

Tushar B. Wagh v. Nandu Madhav Vadhawane and Anr.

Bombay HC26 Jul 2013WP/1972/2012

Case brief

AI extract

What is this about?

In a constitutional writ petition, the Bombay High Court held that requiring full deposit of compensation to stay sentence during appeal was overly onerous. The court conditionally allowed the petition, directing partial deposit and expedited appeal disposal.

What did the court decide?

The substantive sentence suspended upon undertaking to deposit Rs. 6,000 within ten days; appeal to be disposed within three months.

Tushar B. Wagh Vs Nandu Madhav Vadhawane and Anr. — Criminal Trial and Appeal | Bombay HC (2013)

¶1

¶2

CWP-1972.12

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶4

APPELLATE SIDE

¶5

CRIMINAL WRIT PETITION NO. 1972 OF 2012

TUSHAR B. WAGH

.. PETITIONER

VERSUS

NANDU MADHAV VADHAWANE & ANR.

¶10

.. RESPONDENTS

¶11

Mr. A. B. Tajane, Advocate for the petitioner Mr. Rameshwar Gite, Advocate for R. No. 1 Mrs. S. V. Sonawane, APP for the State

¶12

CORAM:-ABHAY M. THIPSAY, J. DATED : 26/07/2013

¶13

P.C.

¶14

Rule. By consent, Rule made returnable forthwith. By consent, heard finally.

¶15

2 The petitioner was prosecuted on the allegation of having committed an offence punishable u/s 138 of the Negotiable Instruments Act. The prosecution was at the instance of the respondent No. 1 herein. The learned Magistrate after holding a trial found the petitioner guilty of the said offence and sentenced him to suffer Simple Imprisonment for a period of two months. The

¶16

¶17

CWP-1972.12

¶18

learned Magistrate also ordered the petitioner to pay compensation of Rs.1,68,000/- to the respondent No. 1 – original complainant. The learned Magistrate stipulated that the compensation would be given in three installments of Rs.56,000/- each. He directed the first installment to be given on 22/3/2012, second on 22/4/2012 and the third on 22/5/2012. The learned Magistrate also imposed a default sentence of simple imprisonment for six months on the failure to pay any of the aforesaid installments.

¶19

3 The petitioner challenged this conviction and sentence imposed upon him by filing an appeal in the court of sessions. At the time of admission of the appeal, the petitioner prayed for the suspension of the sentence and even the conviction. The learned Addl. Sessions Judge passed an order directing the conviction and sentence imposed upon the petitioner to be suspended until further orders, but only on the condition that, the petitioner should deposit the amount of compensation as per the installments granted by the learned Magistrate. The learned Addl. Sessions Judge stipulated that, on the failure of the petitioner to deposit the said amounts, the order i.e. the order suspending the conviction and sentence – shall

2/5

CWP-1972.12

automatically stand cancelled.

¶24

4 It is under these circumstances that, the petitioner has approached this court by invoking its constitutional jurisdiction, praying that the order passed by the learned Addl. Sessions Judge, insofar as it directs the petitioner to deposit the amount of compensation as ordered by the learned Magistrate, be quashed and set aside.

¶25

5 I have heard the learned counsel for the petitioner. I have also heard the learned counsel for the respondent No. 1.

¶26

6 The contention of the learned counsel for the petitioner is that, the condition imposed by the Addl. Sessions Judge, while staying the execution of the sentence imposed upon the petitioner, is too harsh. It is submitted that the compensation covered the entire amount of the cheque in question. It is submitted that it was too harsh to stipulate that the entire amount on the compensation should be paid without determination of the appeal on merits.

¶27

7 I find substance in this contention. It is a fact that the appeal filed by the petitioner is pending. The appeal is statutory and the petitioner has a right to have the same decided in accordance

3/5

CWP-1972.12

with law. Undoubtedly, the Addl. Sessions Judge was empowered to impose appropriate conditions while directing the suspension of the sentence imposed upon the petitioner, but it is well settled that such conditions should not be too onerous It is a healthy normal practice to require a reasonable part of the fine or compensation to be got deposited from an appellant before the appellate court, but a study of the decisions of the High Court and even that of the Supreme Court of India shows that usually deposit of 10% to 15% of the amount of fine or compensation, is held to be satisfactory for the purpose of suspending the substantive sentence during the pendency of an appeal.

¶32

8 In the instance case, the petitioner has already deposited an amount of Rs.50,000/- in the appellate court pursuant to the interim order passed during the pendency of the petition. Additionally, the learned counsel for the petitioner agrees to deposit an amount of Rs.6,000/- so as to make up the amount of the first installment, as stipulated by the learned Magistrate.

¶33

9 In these circumstances, it would be proper to get the appeal itself expeditiously decided.

4/5

CWP-1972.12

10 The petition is partly allowed.

¶38

11 On the petitioner undertaking to deposit a sum of Rs.6,000/- within a period of ten (10) days from today in the appellate court, the substantive sentence imposed upon the petitioner shall stand suspended pending the hearing and final disposal of the appeal before the court of sessions.

¶39

12 The learned Addl. Sessions Judge shall expedite the hearing of the appeal, and in any case, dispose it of within a period of three months from the date of receipt of this order.

¶40

13 The petition is disposed of accordingly. 14 Rule is made absolute in the aforesaid terms.

¶41

(ABHAY M. THIPSAY, J.)

¶42

md.saleem

¶43

5/5

Tushar B. Wagh v. Nandu Madhav Vadhawane and Anr.

Case brief

What is this about?

What did the court decide?

Tushar B. Wagh v. Nandu Madhav Vadhawane and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Kashinath Mangtoolal Tapuriah Vs Union of India and Ors.

Irshad Abdul Salam Ansari Vs the State of Maharashtra and Ors.

Neetu Rajiv Arora and Anr. Vs the State of Maharashtra and Anr.

Sharad @ Dev S. Gupta Vs the State of Maharashtra

The State of Maharashtra Vs Deepak Rajan Nigudkar and Ors.

Sachin Suresh Kulkarni Vs the State of Maharashtra