Allowed

Rajeev v. State and Anr.

Rajasthan HC10 Feb 2017CRLMP/1917/2016

Case brief

AI extract

What is this about?

The Court allowed a criminal miscellaneous petition under Section 482 Cr.P.C. quashing an order that imposed a condition to deposit Rs. 1,36,000 as a prerequisite for suspension of sentence under Section 389(1) Cr.P.C., relying on the precedent Bhagwati Sahay Katriya.

What did the court decide?

The condition of depositing Rs. 1,36,000/- imposed in the impugned order dated 15.06.2016 was deleted, and the order was modified accordingly.

Rajeev Vs State and Anr. — Banking and Recovery | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B.Application Criminal No. 61 / 2017

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S.B.Criminal Misc.(Pet) No. 1917 / 2016

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Rajeev Parakh S/o Shri Dilip Kumar Parakh, B/c Parakh, R/o Himmatlal & Company, Kotegate Bikaner and also R/o Near Indra Devi Katla, Near Fhoolbai Kuaon, Inside Kotegate, Bikaner.

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----Petitioner

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Versus

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State of Rajasthan

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Seetaram Baheti S/o Shri Ishwar Lal, B/c Baheti, R/o Madhav Dev Path Dah Bora Jorahaat, Aasam through Power of Attorney Holder Shri Suresh Kumar Kothari S/o Shri Champalal Kothari, R/o A-32, Karni Nagar, Pawanpuri, Bikaner.

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----Respondents

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_____________________________________________________ For Petitioner : Mr. Mahaveer Bishnoi

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For Respondent No.1 : Mr. Vikram Singh Rajpurohit – PP

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For Respondent No.2 : Mr. Pradeep Choudhary

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HON'BLE MR. JUSTICE VIJAY BISHNOI

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Judgment / Order

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10/02/2017

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The instant application preferred on behalf of the respondent

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No.2 with a prayer for early listing of the case.

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With the consent of learned counsel for the parties, the matter is heard and finally decided.

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Accordingly, the instant application is disposed of.

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This criminal misc. petition under Section 482 Cr.P.C. has been preferred by the petitioner against the order dated 15.06.2016, whereby the Sessions Judge, Bikaner imposed a

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(2 of 3)

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[APPLR-61/2017]

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condition of depositing Rs.1,36,000/- while suspending the sentence of the petitioner on an application preferred under Section 389(1) Cr.P.C.

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Brief facts of the case are that the Special Judicial Magistrate (N.I. Act Cases) No.1, Bikaner has convicted the petitioner for commission of offence punishable under Section 138 of Negotiable Instrument Act and sentenced him for one year's simple imprisonment and further directed to pay a compensation of Rs.6,80,000/- vide judgment dated 16.05.2016 and in default of payment further to undergo 30 days’ simple imprisonment.

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Being aggrieved with the judgment dated 16.05.2016, the petitioner has preferred a statutory appeal under Section 374 Cr.P.C. before the Sessions Judge, Bikaner. Along with aforesaid appeal, an application under Section 389(1) Cr.P.C. was also preferred for suspension of sentence awarded by the learned trial court. The Sessions Judge, Bikaner has allowed the application for suspension of sentence with a condition to deposit Rs.1,36,000/vide order dated 15.06.2016. The petitioner has challenged the imposition of condition of depositing Rs.1,36,000/- by way of this criminal misc. petition.

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Learned counsel for the petitioner has submitted that while exercising the powers under Sub-Section (1) of Section 389 Cr.P.C., the Sessions Judge, Bikaner has no jurisdiction to impose the condition of depositing Rs.1,36,000/- and as such the order passed by the Sessions Judge, Bikaner upto that extent is illegal and liable to be quashed.

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Learned counsel for the petitioner has placed reliance upon

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(3 of 3)

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[APPLR-61/2017]

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the judgment of this Court passed in case of Bhagwati Sahay Katriya Vs. State of Rajasthan & Anr. reported in 2010 (1) Cr.L.R. (Raj.) 684 and submitted that this Court has categorically held in above mentioned case that no such condition can be imposed by the appellate court while exercising powers under Sub-Section (1) of Section 389 Cr.P.C.

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Learned counsel for the petitioner has, therefore, prayed that the condition of depositing Rs.1,36,000/- as imposed in the order dated 15.06.2016 may be deleted.

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Learned Public Prosecutor appearing for the respondent No.1-State as well as learned counsel for the respondent No.2-complainant are unable to dispute the said position of law.

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This Court in Bhagwati Sahay Katriya's case (supra) while taking into consideration the earlier judgments of the Hon'ble Apex Court as well as of this Court has laid down that no such condition of depositing an amount can be imposed by a Court while exercising powers under Sub-Section (1) of Section 389 Cr.P.C.

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In view of above, this criminal misc. petition filed under Section 482 Cr.P.C. is allowed and the condition of depositing Rs.1,36,000/- imposed in the impugned order dated 15.06.2016 is ordered to be deleted. The impugned order dated 15.06.2016 is modified accordingly.

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Stay petition stands disposed of.

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(VIJAY BISHNOI)J.

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Abhishek Kumar S.No.117

Rajeev v. State and Anr.

Case brief

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Rajeev v. State and Anr.

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