Allowed

Kailash Soni v. State of Rajasthan

Rajasthan HC2 Aug 2024CRLMP/2624/2024

Case brief

AI extract

What is this about?

Petitioner challenges order requiring 20% interim compensation deposit to suspend sentence in cheque bounce appeal. HC sets aside order relying on Jamboo Bhandari, allowing appeal without deposit due to petitioner's poverty.

What did the court decide?

Impugned orders set-aside; Sessions Judge to proceed with appeal hearing without insisting on pre-deposit and to enforce no coercive steps till disposal.

Kailash Soni Vs State of Rajasthan — Quashing and FIR | Rajasthan HC (2024)

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[2024:RJ-JD:32080]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc(Pet.) No. 2624/2024

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Kailash Soni S/o Parmanand Soni, Aged About 48 Years, R/o In C/o Naresh Raj Dhariwal, Gali No. 4, Shivshakti Nagar, Mahamandir, Jodhpur, Raj And Om Jewellers Angoothiwala, Krishnakunj, Sojatiyan Ghanchiyon Ka Bas, Near Kesarkunj Market, Ghodon Ka Chowk, Jodhpur, Raj

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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Mangilal Purohit S/o Bhanwar Lal, R/o House No. 14/699, Choupasni Housing Board, Jodhpur, Raj.

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----Respondents

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For Petitioner(s)	: Mr. Aditya Sharma.
For Respondent(s)	: Mr. Mohd. Javed Gouri,PP

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HON'BLE MR. JUSTICE ARUN MONGA

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Order

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02/08/2024

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Grievance of the petitioner is against the order dated 20.05.2019 passed by the learned Additional Sessions Judge No.5, Jodhpur Metro in Criminal Appeal No. 281/2019, whereby the application filed by petitioner/accused under Section 389 Cr.P.C. in a pending appeal against his conviction under Section 138 of the Negotiable Instruments Act, 1881, was allowed subject to the deposit of 20% as interim compensation, so also the order dated 15.10.2022, vide which the learned sessions court proceeded to vacate the order of suspension of sentence aforesaid upon failing to deposit 20%.

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The impugned order dated 20.05.2019 is primarily premised on the reasoning that as per Section 148 Negotiable Instruments

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(2 of 4)

Act, suspension of sentence can only be if a minimum of at least 20% of the fine amount is paid to the complainant.

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A perusal thereof reveals that the learned Sessions court fell in grave error in directing interim payment of the 20% of fine amount under the impression that the provision contained under Section 148 of N.I. Act is absolute in nature and without compliance thereof, the application of the petitioner seeking suspension of his sentence could not have been allowed. In this regard, reference may be had to Apex Court judgment rendered in

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Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd. & Ors. : (2023) 10 SCC 446 . The relevant thereof of is reproduced here in below :-

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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 138 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 4 conclusion must be recorded. 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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10. In these cases, both the Sessions Courts and the High Court have proceeded on the erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception.

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11. The learned counsel appearing for the appellants, at this stage, states that the appellants have deposited 20% of the compensation amount. However, this is the matter to be examined by the High Court.”

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Learned counsel for the petitioner submits that the petitioner is a very poor person and his entire family is living in penury. Being in financial dire straights, he is not in a position to deposit such a huge amount of fine i.e. 20% (Rs.19,00,000/- as compensation) of the total amount of Rs.3,80,000/-.

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On a Court query, learned counsel for the petitioner submits that the petitioner is employed as a worker in a jewellary shop. He is being paid a meagre salary of Rs.8,000 to Rs.10,000/-. He is hardly able to fend for his family consisting of two minor children and wife. He is not in a position to pay as per the impugned order. Counsel further submits that in case, he is taken in custody, even his minor children and wife would not be able to manage two square meals, as he is the sole bread winner of the family.

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In the premise, he shall have to necessarily surrender for being taken into custody. Therefore, he would not even be able to defend his appeal during the pendency thereof. He further submits that the liberty of the petitioner is at stake.

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While, on the other hand, he is sanguine that he has a good case in appeal. He will succeed in the same, but due to his inability to pay he is not able to defend himself in the further proceedings until he complies with the order impugned herein. 8. Having heard the learned counsel for the petitioner, I am in agreement with the arguments canvassed by him.

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In the premise, after perusing the impugned order and the case file, I am of the view that looking at the financial condition of the petitioner, directing him to deposit 20% of the amount as per impugned order shall result in jeopardizing his appeal being dismissed on account of non-compliance of the condition of deposit. He seems to be in financial distress and has to be granted indulgence in the larger interest of justice to enable him to defend himself in the pending appeal.

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As an upshot, keeping in view the ratio of Apex Court judgment in Jamboo Bhandari (supra) and in the light of the facts and circumstances of the case the impugned orders are set-aside. Learned sessions judge shall proceed with hearing of the appeal without insisting for pre-deposit and dispose of the same in accordance with law. In case any coercive steps have been taken for securing the presence of the petitioner, the same shall not be enforced until the disposal of the appeal.

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Pending application(s), if any, also stand(s) disposed of.

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(ARUN MONGA),J

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101-Rmathur/-

Kailash Soni v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Kailash Soni v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

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