Kedar Nath Petitioner v. State Of Haryana And Anr. S

Satish Kumar Mittal, J. — Petitioner Kedar Nath (accused), who presently is confined in Central Jail, Ambala, has filed this criminal revision against the order dated 8.4.2006, passed by the Additional Sessions Judge, Jagadhri, whereby on an application for suspension of sentence filed by the petitioner along with the appeal filed against the judgment of conviction and order of sentence passed by the trial Court under Section 138 of the Negotiable Instruments Act, a condition was imposed i.e, to deposit an amount of Rs. 1,50,000/- before the trial Court at the time of furnishing his bail bonds.

2. I have heard the counsel for the parties and gone through the judgment of conviction and order of sentence passed by the trial Court as well as the impugned order passed by the Appellate Court.

3. In this case, the petitioner was convicted for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’) for dishonour of several cheques amounting to Rs. 1,50,000/- vide judgment of conviction dated 27.3.2006 passed by the Additional Chief Judicial Magistrate, Jagadhri. Subsequently, on the next day, i.e, 28.3.2006, the petitioner was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 3 lacs for the commission of offence punishable under Section 138 of the Act. It was also ordered that out of the fine of Rs. 3 lacs, a sum of Rs. 2,50,000/- be given to the complainant as compensation. In default of payment of fine, except compensation part, the accused shall undergo further imprisonment for a period of three months.

4. Against the aforesaid judgment of conviction and order of sentence, the petitioner filed an appeal before the Additional Sessions Judge, Yamuna Nagar. The same was admitted and notice in the application for suspension of sentence was issued. It was argued that the petitioner has not deposited the amount of fine of Rs. 3 lacs as imposed by the trial Court, therefore, the sentence imposed upon him cannot be suspended. After hearing the counsel for the parties, the Appellate Court ordered the suspension of sentence subject to the condition that the petitioner will deposit an amount of Rs. 1,50,000/- before the trial Court at the time of furnishing of his bail bonds in the sum of Rs. 10,000/- with one surety in the like amount.

5. The petitioner has challenged the imposing of the aforesaid condition in this criminal revision. Learned counsel for the petitioner submits that the fine as imposed under Indian Penal Code has to be treated as sentence as provided under Section 53 I.P.C and has ordinarily to be recovered within six years of its imposition as provided under Section 70 I.P.C While referring to Section 357(2) Cr.P.C, learned counsel for the petitioner contends that if the fine is imposed in a case by the trial court which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. He submits that in the instant case the fine of Rs. 3 lacs was imposed by the Court and the condition imposed by the Appellate court, while suspending the sentence of the petitioner, to deposit the fine of Rs. 1,50,000/- amounts to directing the petitioner to pay the amount of fine, which the petitioner is not liable to pay till the final decision of the appeal filed by him. In support of his contention, learned counsel for the petitioner relied upon the decision of this Court in Sabita Behl…Petitioner v. State Of Haryana…, 2004 (1) R.C.R (Criminal) 659 (P&H) in which this Court has observed that a fine imposed by the trial court cannot be recovered till the presentation of the appeal of if appeal is presented and is entertained, then the fine cannot be recovered before the adjudication of the appeal.

6. On the other hand, counsel for respondent No. 2 submitted that out of the fine of Rs. 3 lacs, a sum of Rs. 2,50,000/- was given to the complainant as compensation, therefore, in case the said amount of fine is not deposited, the Appellate Court was justified in imposing the aforesaid condition.

7. After hearing the counsel for the parties, I find substance in the contention raised by the counsel for the petitioner. In this case, the trial Court has convicted the petitioner for the offence under Section 138 of the Act and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 3 lacs. Section 138 of the Act provides that a person, who has committed the offence under the said Section can be punished with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. As per Section 29 Cr.P.C, there is no limitation for imposing the fine by the Chief Judicial Magistrate. The only limitation is with regard to the Judicial Magistrate Ist Class, who cannot impose a fine of more than Rs. 10,000/- in a case tried by him. Fine as imposed under Indian Penal Code has to be treated as sentence in view of Section 53 I.P.C In this case, the judgment of conviction and order of sentence was passed by the Additional Chief Judicial Magistrate, Jagadhri. He was competent to impose the fine of Rs. 3 lacs in the instant case, which was double the amount of the dishonoured cheque.

8. Against the judgment of conviction and order to sentence, an appeal was preferred by the petitioner, which was admitted for hearing. While suspending the sentence, the Appellate Court imposed a condition for depositing an amount of Rs. 1,50,000/- out of the amount of fine of Rs. 3 lacs imposed by the trial Court. In my opinion, by imposing the said condition; the petitioner was compelled to pay the amount of fine, which according to sub-section (2) of Section 357 Cr.P.C the accused is not liable to pay till the final adjudication of the appeal. Merely because out of the amount of fine of Rs. 3 lacs, Rs. 2,50,000/- was ordered to be paid to the complainant as compensation, in my opinion, does not change the nature of fine. The judgment of the trial Court, is very clear that a fine of Rs. 3 lacs was imposed along with the sentence of one year. The facts of this case are squarely covered by the decision of this Court in Sabita Behl's case (supra). Thus, in my opinion, the Appellate Court was not justified while imposing the impugned condition directing the petitioner to deposit an amount of Rs. 1,50,000/- before the trial Court at the time of furnishing the bail bonds in view of the order of suspension of sentence passed by the Appellate Court.

9. A Division Bench of this Court in its order dated May 26, 2004 passed in Criminal Appeal No. 99-DB of 2004 titled as ‘Jaspal Singh and another v. State of Punjab’ has observed as under :

“…The question, which, we are called upon to answer while disposing of the Criminal Misc., is whether according to the provisions of Code of Criminal Procedure any order regarding suspension of sentence is actually required to be passed. In other words, whether the proceedings for recovery of fine at can at all be initiated during the pendency of the appeal.

In order to answer this question, we may peruse with benefit the language of Section 357(2) Cr.P.C, which reads as under :

“357. Order to pay compensation :

(1) xxxxxxxx

(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or if an appeal be presented, before the decision of the appeal.

(3) to (5) xx xx xx”.

A perusal thereof shows that proceedings for recovery of fine cannot be started until the period for filing appeal has elapsed and in case where the appeal has been presented, before the decision of the appeal.”

10. Hence, this petition is allowed and the impugned order dated 8.4.2006 passed by Additional Sessions Judge, Yamuna Nagar is set aside and the petitioner is ordered to be released forthwith on furnishing the bail bonds in the sum of Rs. 10,000/- with one surety in the like amount in view of the order of sentence passed by the Appellate Court.

Petition allowed.