Cheque; Rajnikant Nathalal Maniar Vs. Jagdish Jasvantlal Patwa [Gujarat High Court, 05-07-2016]

Negotiable Instruments Act, 1881Criminal Procedure Code, 1973 – Section 357 – Condition to deposit certain amount for admitting the appeals – harshness of such condition – it would depend upon the amount of cheques – order to deposit 30% of the cheques amount – Held, practically even the impugned order cannot be considered as a harsh order so as to enable the petitioner to be released on bail because even after depositing 30% amount of the cheques, he is enjoying benefit of 70% of the amount of the cheques or amount in dispute – however, at the most the petitioner may be entitled to some instalments for making such payment so as to make him convenient to deposit such amount – What is to be seen by the appellate Court at the time of admitting the appeals and releasing the accused on bail, is quite obvious that whether filing of appeals is genuine or only with a view to prolong the time and thereby to delay the execution of order of conviction – therefore, in such cases, if appellate Court deems it fit to impose condition to deposit certain amount, it cannot be said that such condition is illegal.


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

Date : 05/07/2016

CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -NEGOTIABLE INSTRUMENT ACT) NO. 333 of 2016 With CRIMINAL REVISION APPLICATION NO. 334 of 2016 TO CRIMINAL REVISION APPLICATION NO. 336 of 2016 RAJNIKANT NATHALAL MANIAR….Applicant(s) Versus JAGDISH JASVANTLAL PATWA & 1….Respondent(s) Appearance: MR MRUDUL M BAROT, ADVOCATE for the Respondent(s) No. 1 MR MANAN MEHTA & MR KP RAVAL, APP for the Respondent(s) No. 2

COMMON JUDGMENT

Rule. Service of rule is waived by Mr. Mrudul Barot, Ld. Advocate and Mr. Manan Mehta & Mr. Raval, Ld. APP for respondent nos. 1 and 2 respectively.

2. All these revision applications are between the same parties and though arising out of different impugned orders in different appeals, practically in all the matters, similar law point is involved and, therefore, though the petitioner has to prefer four separate revision applications because of four separate impugned orders in four separate Criminal Appeals arising out of four separate Criminal Cases, they are heard together and are decided by this common judgment. Even parties have also submitted only one set of arguments in all such matters.

3. Therefore, four revision applications are decided by this common judgment. Hence Registry shall keep copy of this judgment in all the matters.

4. The petitioner in all the revision applications is facing an order of conviction under the

Negotiable Instruments Act

[for short ‘NI Act’] in all such revision applications, because the petitioner has issued four different cheques in favour of the respondent – complainant and, therefore, when all such cheques were bounced and remained unpaid by the petitioner’s bank, the complainant has filed complaint under section 138 of the NI Act before the Court of Metropolitan Magistrate, Ahmedabad. Such Court has by impugned order dated 29/3/2016, after full-fledged trial, convicted the present petitioner and awarded sentence of simple imprisonment [SI] for one year with fine of Rs.5,000/- and in default of payment of fine, further SI for two months.

5. The petitioner has challenged such conviction by filing respective appeals before the City Sessions Court at Ahmedabad. With such appeals, the petitioner has also filed applications for bail.

6. However, while granting the bail by its order dated 26/4/2016, the City Sessions Court has imposed a condition that the petitioner should be released on bail till hearing and final disposal of such Criminal Appeal on depositing Rs.7,50,000/- before the trial Court and on executing personal bond of Rs.20,000/- with a surety of like amount to the satisfaction of the trial Court, with some regular conditions like marking presence before the Court on every date of hearing, not to leave local limits of Gujarat without prior permission of the Court, not to misuse his liberty, etc. Being aggrieved by such conditional order of bail, the petitioner has challenged such order dated 26/4/2016 by filing present revision applications.

8. The sum and substance of arguments of the learned advocate for the petitioner is to the effect that filing of an appeal by the accused person is his constitutional and legal right and, therefore, when right to appeal is provided in the statute, the petitioner is also entitled to be released on bail. Therefore, such order of bail should not be conditional one as purported in the impugned judgment and same needs to be quashed and set aside.

9. In support of his such submission, learned advocate for the petitioner is mainly relying upon the decision of the Hon’ble Supreme Court rendered in the case of

Dilip S Dahanukar v. Kotak Mahendra Company Ltd. Reported in [2007] 6 SCC 528

and other judgments referred in such citation.

10. If we peruse such decision, it becomes clear that practically the Hon’ble Supreme Court has discussed so many judgments and other details mainly for interpretation of

Section 357 of the Criminal Procedure Code, 1973

[for short ‘the Code’] vis-a-vis the provisions of NI Act with reference to the power to impose fine, but with due respect to the decision of the Hon’ble Supreme Court, it is to be recollected here that the provisions of section 357 of the Code is mainly with reference to the powers of the Court to order to pay compensation and not with regard to imposition of fine. Generally the powers to impose fine for the offences under the Indian Penal Code [IPC] are conferred in the Penal Code itself. Similarly, under section 138 of the NI Act, there is a provision to impose fine which can be upto double the amount of the cheque in question as against different specific amount of fine for different offences in other enactments including IPC. Therefore, the powers of the Court in imposing fine under section 138 of the NI Act is altogether different and unlimited, but restricted to the amount of cheque, which can be different in different cases. Therefore, if the amount of cheque for which complaint under section 138 of the NI Act is filed and proved is Rs.100/-, then the Court has power to impose fine of Rs.200/-. But if the amount of cheque in such complaint is of any higher amount, say Rs.1 crore, then the Court has power to impose fine of Rs.2 crores. Therefore, imposition of any amount as fine under the NI Act cannot be termed as harsh based upon the actual figure in such condition because it would vary from case to case and in a given case, it may be much more, but it cannot be said that only because of direction to deposit huge amount, it amounts to harsh condition so as to refuse bail to the convict pending appeal and, therefore, order of bail should not contain such condition.

11. To be more precise, let us examine the wording of section 138 of the NI Act, wherein the relevant portion reads thus :

“….. Such person shall be deemed to have committed an offence and therefore, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extent twice the amount of cheque or with both;”

Whereas section 357 of the Code of Criminal Procedure provides for order to pay compensation; to be paid to the victim from the amount of fine that may be imposed upon the accused. But sub- section [3] of section 357 specifically provides that when a Court imposes sentence, which does not include fine as a part of it, the Court may, by way of compensation, order the accused to pay such amount as may be specified in the order, to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. However, such order to pay compensation can be passed at the time of passing the judgment of the appeal because pursuant to sub-section [2] of section 357, if fine is imposed in a case which is subject to appeal, though compensation can be paid to the victim from the amount of such fine, no such payment shall be made before the period allowed for presenting the appeal, has been elapsed or before the decision of the appeal.

12. Whereas sub-section [4] of section 357 of the Code entitles the High Court or Sessions Court to pass any such order even while exercising its power of revision. Therefore, one thing is clear and certain that irrespective of imposition of fine or imposition of meagre amount as a fine in an order of conviction by the trial Court, the High Court and Sessions Court can award the compensation which may be only with a rider that payment of which can be made to the victim only at the time of deciding the appeal.

13. Whereas so far as releasing the accused on bail is concerned, now accused – petitioner has to apply for bail as per the provisions of section 389 of the Code and thereupon provisions of the Criminal Procedure Code pertaining to bail would apply which empower the Court to impose such other conditions as it considers necessary, more particularly now when such appellant is not simply accused but is a convict; thereby there is something more than prima-facie evidence against him. In simple words, before conviction, the prima-facie evidence is yet to be proved by the complainant; whereas after conviction, it is to be considered that there is evidence against the convict to award him conviction. But only because there is provision to file an appeal, it cannot be said that such person is in the same condition as an accused before the trial Court. In view of such fact, if the appellate Court deems it fit to impose certain conditions so as to ultimately decide the appeal at the earliest by reducing the imprisonment against payment of more fine which may be utilized for payment to the victim as compensation so as to redress his grievance which may result into physical freedom in favour of the accused i.e., not to undergo imprisonment, it cannot be said that the Court has no jurisdiction to do so. Constitutional and statutory right to file appeal does not confirm absolute right to be released on bail, which is quite a discretionary in nature and there cannot be any straight jacket formula or rule of thumb that all accused of all convictions should be released on bail as and when appeal is filed, irrespective of different consideration in different type of cases so also nature and character of the convict. As hardcore criminals or convicts of heinous crimes are not released on bail, even a convict under NI Act may be required to be released on bail or there may be strict conditions for bail considering modus operandi and attitude to take disadvantage of any situation.

In addition to above position of law, if we peruse the judgment under reference in detail, it becomes clear that even in such reported case, after discussing several judgments, which are now not required to be discussed herein as suggested by the petitioner, practically the Hon’ble Supreme Court has also concluded and ordered the accused before it to deposit a sum of Rs.1 lac within a period of four weeks from the date of such order and the Hon’ble Supreme Court has gone to the extent of even allowing to withdraw such amount by the respondent – complainant. Whereas factually, in such reported case, the trial Court has imposed fine of Rs.25,000/- only on the company, but Chairman of the company was directed to pay compensation of Rs.15 lacs in addition to imposition of SI for one month. While in appeal against such order, the appellate Court suspended the sentence subject to deposit of Rs.5 lacs while admitting the appeal of the accused – Chairman. However, ultimately the Hon’ble Supreme Court has held that while suspending the sentence even the appellate Court is entitled to put appellant on terms and also observed that no such term could be put as a condition precedent for entertaining an appeal which is a constitutional and statutory right. Therefore, what is held by the Hon’ble Supreme Court is regarding the rights of the accused to file an appeal, but not with regard to releasing him on bail in such appeal. The verdict of the Hon’ble Supreme Court needs to be recollected in its own words, which read thus :

“Thus while exercising the appellate power, ordinarily a person should not suffer imprisonment only because the conditions imposed for suspending the sentence are harsh.”

15. Therefore, practically what is decided by the Hon’ble Supreme Court in this reported judgment is to the above effect only and discussion of other judgments on other issues is practically to arrive at such conclusion only and, therefore, those discussions cannot be treated and considered as ratio decidendi or determination by the Hon’ble Supreme Court so as to rely upon it while deciding any such issue.

16. The petitioner is also relying upon a decision rendered by the Ld. Single Judge of this High Court in Special Criminal Application No. 3989/2014 between Dhruvaben Bhaveshkumar Mehta v. Mahindra and Mahindra Financial Services Ltd., wherein mainly relying upon the decision of Dilip S Dahanukar [supra], it was held in following terms :

“In view of the aforesaid provisions, it is clear that the appellate Court is having power to suspend the sentence pending the appeal, and thereby to release the convict person on bail. However, while releasing convict person on bail, a condition which is harsh cannot be imposed.”

Therefore, though the Ld. Single Judge has quashed and set aside the condition to deposit 25% of the cheque amount in such case, the verdict of the Court does not confirm that there cannot be any such condition when it is specifically decided that while releasing the convict person on bail, a harsh condition cannot be imposed. Therefore, only because of two judgments which practically confirm that there can be condition, but it should not be harsh, it becomes clear that the petitioner has misconstrued both such judgments in his favour.

17. Before coming to the factual details and to consider that whether condition imposed in the present case is harsh or not and in that case, how to make it liberal i.e. how to make the petitioner comfortable in order to abide by such condition, reference to some other judgments is necessary, which confirms such view.

18. The respondent is relying upon the decision between