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TMI Blog2020 (11) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- and two sureties of the like amount to the satisfaction of the court concerned till the disposal of the appeal - application allowed in part. - APPLICATION U/S 482 No. - 16445 of 2020 - - - Dated:- 10-11-2020 - Hon'ble Piyush Agrawal , J. For the Applicant : Vijay Kumar Mahendra For the Opposite Party : G. A. ORDER Hon'ble Piyush Agrawal , J. 1. This application under Section 482 CrPC has been filed for quashing the orders dated 24.2.2020 and 24.9.2020 passed by learned Sessions Judge Agra in Criminal Appeal No. 15 of 2020, (Brijnandan Sharma Vs. State of UP) under Section 138 of N.I. Act, Police Station Hapur Kotwali, Distt. Hapur arising out of judgment and order dated 24.1.2020 passed by Chief Judicial Magistrate, Hapur in Complaint Case No. 282 of 2009 (Hitesh Kumar Vs. Brijnandan Sharma) under Section 138 of Negotiable Instruments Act, whereby learned Sessions Judge, Hapur granted bail to the applicant on the condition of deposit 35% of the amount of ₹ 75,00,000/- imposed as fine by the learned Magistrate. 2. Learned counsel for the applicant submits that the applicant is a very poor and he is not in a position to deposit suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 20,000/- and two sureties of the equal amount till the disposal of appeal. Admittedly, 1/4th of the total fine has not been deposited by the applicant and the present application under Section 482 CrPC has been filed challenging the order dated 22.03.2018 imposing the condition for suspension of sentence and releasing him on bail. Heard Sri Mithilesh Kumar Shukla, learned counsel for the applicant and learned AGA for the State. Learned counsel for the applicant has submitted that the order dated 22.03.2018 is against the statutory provision of law and realization of fine ought to have been stayed by the Appellate Court during the pendency of the appeal specially when the bail has been granted to the applicant. Learned counsel for the applicant has further submitted that if the applicant is compelled to deposit 1/4th of the amount of fine about ₹ 18,75,000/- for being released on bail, the filing of appeal would be a futile exercise, which would be an abuse of the process of the court and as such, the impugned order passed by the Appellate Court as a pre-condition for being released on bail is unreasonable, unjust and onerous. On the contrary, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section. Section 389 CrPC provides suspension of sentence pending the appeal and release of appellant on bail, which is quoted herein below :- Section 389. Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in the case of Dilip S. Dhanukar Vs. Kotak Mahindra Company Limited and another, reported in (2007) 6 SCC 528, wherein it has been held that not only amount of compensation must be reasonable, but condition for suspending the sentence should also be reasonable. Hon'ble Apex Court in para nos. 38 and 39 of the said judgment has held :- 38.............The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-Section (3) of Section 357 does not impose any such limitation and thus, power thereun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individuals and the community. In Keshab Narayan Banerjee and another Vs. State of Bihar, AIR 1985 SC 1666, Hon'ble Supreme Court has held that : The condition imposed by the High Court for enlarging appellant no.1 on bail, namely that he should furnish security for rupees one lakh in cash or in fixed deposit of any nationalized bank in Bihar with two local sureties residing in State of Bihar each to a like amount appears excessively onerous and in the circumstances of this case, it virtually amounts to denial of bail itself. Similarly, in the case of Sheikh Ayub Vs. State of M.P. (2004) 13 SCC 457, the condition for furnishing surety bond of ₹ 50,000/- and direction to deposit ₹ 2,50,000/- alleged to be the amount misappropriate by the accused was also held to be onerous and amounting to denial of bail. In view of the aforesaid judgments, it is evident that the Appellate Court may impose a condition while suspending the sentence, however, the power of imposing conditions is discretionary and the Court while suspending the sentence can always direct the applicant to deposit fine in the court but the amount of such condition must not be unreas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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