2015 (1) TMI 1477 - HC - Indian Laws

Dishonor of Cheque - Suspension of substantive order of sentence - imposition of condition to deposit 25% of the amount of the cheque by the petitioner - HELD THAT - This Court is of the opinion that the Sessions Court has committed an error by imposing the condition to deposit 25% of the cheque amount while suspending the substantive order of sentence. The accused is having a statutory right to prefer an appeal before the Sessions Court, and when there is no order of grant of compensation passed by the learned Judicial Magistrate First Class in favour of the complainant, the Sessions Court could not have imposed the condition to deposit 25% of the cheque amount while suspending the substantive order of sentence. From the decision of the Honourable Supreme Court in Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. and another 2007 (4) TMI 667 - SUPREME COURT , it is clear that the petitioner accused is having a statutory right to prefer appeal before the Sessions Court. When such appeal is preferred, it is the duty of the learned Sessions Court to release the concerned accused on bail by suspending the sentence under Section 389 of the Criminal Procedure Code, 1973 on certain terms and conditions, which are not harsh. In the present case, it is clear from the record that the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. However, while suspending the sentence, a condition was imposed on the petitioner to deposit 25% amount of the cheque amount. From the facts of the case, it appears that the petitioner is not in a position to fulfil the said condition, and therefore, the said condition is too harsh. The Sessions Court while suspending the sentence could not have imposed such a condition, which is not possible for the accused to comply. If the accused is unable to comply with the said condition, the result would be that the said accused has to be sent to jail for non-fulfilment of the said condition, and therefore, the condition imposed by the Sessions Court of depositing 25% of the cheque amount is required to be quashed and set aside. In the present case, it is clear that while suspending the substantive order of sentence of the present appellant, the learned Sessions Court imposed a condition to deposit 25% of the cheque amount, which can be said to be a harsh condition as averred and contended by the petitioner in the petition. Petition allowed.

Summary

Issues:
1. Imposition of condition to deposit 25% of the cheque amount while suspending the substantive order of sentence.

Analysis:
The petitioner filed a petition under Article 227 of the Constitution of India seeking to quash the order passed by the Sessions Court, Mehsana, which imposed a condition on the petitioner to deposit 25% of the cheque amount while suspending the sentence. The petitioner was convicted under Section 138 of the Negotiable Instruments Act, 1881, and was ordered to undergo imprisonment and pay a fine. The petitioner argued that the condition imposed by the appellate court was too harsh as it amounted to Rs. 2,65,000, which was beyond the fine amount. The petitioner cited Supreme Court judgments to support the contention that such conditions should be reasonable and not result in imprisonment due to non-compliance.

The respondent, the original complainant, defended the imposition of the condition, stating that it was within the appellate court's power to ensure justice. The Additional Public Prosecutor also submitted arguments in favor of the condition.

Upon considering the arguments and relevant legal provisions, the High Court opined that the Sessions Court erred in imposing the condition to deposit 25% of the cheque amount. The Court referred to a Supreme Court judgment highlighting the statutory right of the accused to appeal and the need for conditions to be reasonable. The Court noted that the condition imposed was harsh, especially considering the petitioner's financial inability to comply.

Citing another Supreme Court decision, the High Court emphasized that conditions imposed while releasing a convict on bail should be reasonable and not defeat the purpose of the bail order. Therefore, the High Court allowed the petition, quashing the orders passed by the Sessions Court imposing the condition to deposit 25% of the cheque amount.

In conclusion, the High Court held that the condition imposed by the Sessions Court was unreasonable and harsh, leading to the quashing of the said condition. The judgment emphasized the need for conditions to be fair and practical, ensuring that the accused can comply without facing undue hardship.