NIMISH THAKORE Vs. DHANRAJ MEGHRAJ RAJPAL

JUDGEMENT

(1.) RULE. Rule made returnable forthwith. With consent of the parties, petition is taken up for final hearing immediately.

(2.) THE respondent no. 1 filed the complaint under Section 138 of the Negotiable Instruments Act against M/s Hetu Investment & Trading Pvt. Ltd. as accused no. 1 and six others as accused no. 2 to 7. The present petitioner was accused no. 2. The cheque was issued on behalf of the Company by the present petitioner. As per the contention of the complainant- respondent no. 1, for and on behalf of the accused no. 1 Company, the present petitioner had issued two cheques, one of Rs.2,75,000/- dt. 20th October, 1998 and another of Rs.10.42 Lacs dt. 11th December 1998. Both the cheques were presented for encashment but were dishonoured with remarks 'insufficient funds'. After statutory notice also, the accused persons failed to make the payment, hence the complainant filed the complaint.

(3.) BEING aggrieved by the conviction and the sentence, both the accused preferred Criminal Appeal No. 17 of 2007 before the Sessions Court, Greater Bombay. By order dtd. 12/01/2007, the learned Additional Sessions Judge admitted the appeal and directed to issue notice to the respondents. He also directed that substantive sentence shall stand suspended till next date in view of Section 357(2) of Cr.P.C. upon furnishing fresh bond by the appellant of the same bail amount. After service of notice to the complainant-respondent and after hearing both the sides, the learned Additional Sessions Judge, after referring to the judgment of this Court in Dilip S. Dahanukar & Anr. vs. Kotak Mahindra Co. Ltd. 414 2006(2) Bom. C.R. (Cri) 414, directed the appellants to pay amount of Rs.13,00,000/- within a period of one month, while extending suspension of substantive sentence against the appellant no,. 1 (who was accused no. 2) and accordingly the substantive sentence against appellant no. 1 was suspended till disposal of the appeal subject to payment/deposit of the amount of Rs.13,00,000/- in the Court within a period of one month. This order is challenged by the original accused no. 2/ appellant no. 1 in the present petition. According to him, he was directed to pay amount of Rs.13,00,000/- within a period of one month as a condition for suspension of sentence of imprisonment which is tantamount to putting a condition of depositing the amount for admitting the appeal. According to him, if he fails to make the payment of such a huge amount within a period of one month, he will be required to go to Jail and thus his appeal will become infructuous and thus for all practical purposes he will be deprived of the right of appeal against conviction and sentence.