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TMI Blog2015 (1) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed the order dated 21st October 2011 passed below application Exh.5 in Criminal Appeal No.125 of 2011 for the purpose of suspension of sentence. By the said order, the Sessions Court imposed a condition to deposit 25% of the amount of the cheque by the petitioner. 2. This Court issued notice for final disposal by an order dated 16th October 2014. In pursuance to the said notice, learned advocate for the original complainant - respondent No.1 remained present. 3. Heard learned advocate Mr. Vaibhav N. Sheth for the petitioner, learned advocate Mr. Rakesh B. Sharma for the respondent No.1, and learned Additional Public Prosecutor Ms. Maithili Mehta for respondent No.2. 4. Learned advocate for the petitioner submitted that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt could have directed the petitioner to deposit the entire amount of fine as a condition precedent for suspending the substantive order or sentence. However, the appellate court could not have passed an order of depositing 25% of the total amount of the cheque. Learned advocate further pointed out from the record that the petitioner, therefore, submitted an application Exh.16 before the learned Sessions Judge, and pointed out to the learned Sessions Court that the imposition of condition to deposit 25% of the cheque amount is too harsh, the petitioner is having a statutory right to prefer an appeal, and, in view of the decision of the Honourable Supreme Court, the condition imposed for depositing 25% of the cheque amount be quashed. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Having heard learned advocates for the respective parties, and having gone through the material produced on record and the decisions cited by the learned advocate for the petitioner, 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. 8. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be passed which the appellant cannot comply with resulting him being sent to prison. Appellate Court, in such cases, must make an endeavour to strike a balance. Section 421 of the Code of the Criminal Procedure may take recourse to, but therefor he cannot be remanded to custody. 65. The matter has to be considered from another angle. An accused for commission of an offence under Section 138 of the Negotiable Instruments Act would ordinarily be granted bail; in view of the fact that the offence is a bailable one. 68. It is also of some significance to note that whereas under Section 357(1) of the Code of Criminal Procedure a fine of Rs. 5000/- can be imposed; fine in terms of Section 357 (2) thereof can be twice the amount of cheque whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 depositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,- (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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