PARMOD KUMAR Vs. AJAY TEWATIA

JUDGEMENT

(1.) The petitioner was convicted for the offence under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as Act) and sentenced to undergo simple imprisonment for a period of three months and to pay compensation of Rs.11.25 lacs within one month from the date of the order. The Cheque amount in this case was Rs.7.5 lacs.

(2.) The petitioner preferred an appeal against his conviction and sentence. The appeal was admitted while suspending the sentence and condition was imposed that the petitioner would deposit a bank draft of an amount of Rs.3.75 lacs (half of the cheque amount/furnish bank guarantee to the extent of Rs.3.75 lacs/make an FDR in the sum of Rs.3.75 lacs) in favour of the complainant within 15 days from the date of the order. The same was done by placing reliance upon judgment of the Supreme Court in 'Dilip S. Dahanukar Vs. Kotak Mahindra Co.Ltd. and Anr., 2007(2) R.C.R. (Criminal) 636'. The imposition of the aforementioned condition while suspending the sentence of the petitioner is under challenge in the present petition.

(3.) Learned counsel for the petitioner submits that Sec. 357(2) Cr. P.C. bars recovery of fine during the pendency of the appeal. Compensation awarded by the Court is similar in nature to 'fine' as is evident from Sec. 357(1) (b) Cr. P.C. The said provision provides for award of the whole or any part of 'fine' for compensating a person who has suffered loss or injury on account of offence. A Court can award compensation in exercise of jurisdiction in it under Sec. 357(3) Cr.P.C. and compensation is to be awarded for the purpose of making good any loss or injury caused on account of offence. Since application of fine and recovery of compensation is for the same purpose, the bar of Sec. 357 (2) Cr. P.C. would be squarely attracted. It is further submitted that filing of an appeal is a statutory right and by virtue of the enlarged meaning given to Article 21 of the Constitution of India, it is also a constitutional and fundamental right. Such a right cannot be curtailed by imposing condition while suspending the sentence and thus, the condition imposed by the Lower Appellate Court is not sustainable. He by relying upon the judgment of Dalip S. Dahanukar's case (supra) and submits that the said judgment had been misinterpreted by the learned Lower Appellate Court.