AJAY KUMAR Vs. SURESH KUMAR AND ANOTHER

JUDGEMENT

(1.) The petitioner suffered a judgment of conviction rendered by the learned Special Judicial Magistrate, Kullu, District Kullu, H.P. for his having allegedly committed an offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner aggrieved by the judgment of conviction and consequent imposition of sentence of imprisonment upon him as also of his being encumbered to pay compensation to the complainant in the sum of Rs.3,25,000/-, preferred an appeal before the learned Appellate Court. The learned Appellate Court while suspending the sentence of imprisonment imposed upon the petitioner, directed him to deposit Rs.1,50,000/-, its constituting a part of compensation amount, as directed by the learned trial Court to be defrayed to the complainant by the petitioner. The said deposit of a part of the compensation amount has been recited in the impugned order to constitute a condition precedent for rendering the order of the learned Appellate Court suspending the sentence of imprisonment to acquire force. The petitioner is aggrieved by the said exorbitant amount of Rs.1,50,000/- being ordered to be deposited by him as a condition precedent to the order rendered by the learned Appellate Court suspending the operation of the sentence of imprisonment imposed upon him by the learned trial Court to take effect, inasmuch as it works hardship especially given the fact that he is an agriculturist. The insistence made by the learned Appellate Court upon the petitioner herein for his depositing a part of compensation amount in the sum aforesaid as a pre condition for the order suspending the sentence of imprisonment taking effect, is per se untenable especially when it does not constitute sentence of fine imposed upon the petitioner. Besides it is unworkable and tends to promote hardship to the petitioner. For reiteration, otherwise also insistence on its deposit is untenable in the face of the provisions of Section 357(3) of the Code of Criminal Procedure, which are extracted hereinafter, inasmuch as the imposition of sentence of fine upon the accused/convict alone constitutes punishment, however, the order of compensation imposed upon the accused/convict along with or independently of imposition of sentence of fine does not constitute imposition of punishment upon the convict/accused. Obviously, the order of imposition of compensation upon the petitioner/convict did not entail its being suspended nor also as a corollary insistence upon its deposit as a precondition to the order suspending the operation of sentence of imprisonment to take effect, is vindicable. Provisions of Section 357(3) reads as under:-

(2.) As a concomitant, then insistence ought to have been made and is also mandatorily required to be made by the Court suspending the operation of sentence of imprisonment as also of sentence of fine, for the deposit of the latter, as a precondition, for the order suspending the operation of sentence of imprisonment and sentence of fine to acquire force and take effect. However, when in the instant case no sentence of fine has been imposed upon the petitioner/accused/convict, hence when its imposition alone constitutes punishment and as a corollary when insistence for its deposit is mandatorily enjoined to be made by the Court suspending the operation of sentence of imprisonment as of fine, its non imposition ought not to have untenably led the learned Appellate Court while suspending the operation of sentence of imprisonment to insist upon the accused/petitioner to deposit compensation amount as a precondition for the order suspending the sentence of imprisonment to take effect, especially when for the reasons aforesaid it does not constitute punishment. Besides when it occurs in sub section (3) of Section 357 of the Cr.P.C., and is imposable in addition to or along with fine, as such insistence on its deposit has done injustice to the petitioner/accused, which needs to be undone by this Court.

(3.) Accordingly, the impugned order is partly quashed so far as it directs the petitioner/accused to deposit a sum of Rs.1,50,000/- before the learned trial Court. However, for securing the interest of the complainant for claiming reimbursement of the compensation amount in the event of an ultimate decision in the complaint being recorded in his favour that the petitioner/accused deposit a sum of Rs.70,000/- before the learned trial Court within six weeks from today. With above directions the petition stands disposed of.