Shankar Lal Sharma S/o Late Sh. Satya Narayan Sharma, aged vs Nagar, Tonk Road, Jaipur, PS Bajaj Nagar, Jaipur (Raj.)

Judgment

1. Radheshyam S/o Sh. Kor Chand, R/o Plot No. B-25, Dev Nagar, Tonk Road, Jaipur, PS Bajaj Nagar, Jaipur (Raj.)

2. State of Rajasthan through Public Prosecutor. ----Respondents For Petitioner(s)

: Mr. L.L. Gupta For Respondent(s) : Mr. Jitendra Singh Rathore, PP Mr. Manish Kumawat HON'BLE MR. JUSTICE ANAND SHARMA Order 03/07/2025

1. This criminal miscellaneous petition under Section 528 B.N.S.S., 2023 has been filed by the petitioner against the order dated 26.03.2025 passed by the Additional District & Sessions Judge-No.5, Jaipur Metro-I, Jaipur in Criminal Case No.16/2025, whereby the application filed by the petitioner for waiving the condition of depositing 20% of the cheque amount for the suspension of sentence has been rejected by the Appellate Court.

2. Facts in brief are that on account of dishonour of cheque bearing No.990771 dated 13.08.2007 drawn on UCO Bank, Bani Park, Jaipur for rupees one crore, the complainant/respondent filed complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act of 1881”). After trial, the competent criminal court convicted the petitioner vide judgment dated [2025:RJ-JP:24791] (2 of 5) [CRLMP-2346/2025]

28.02.2025 and sentence of imprisonment of 2 years as well as fine of rupees one crore ten lakhs have been imposed upon the petitioner.

3. Feeling dissatisfied by the judgment dated 28.02.2025, the petitioner filed an appeal before the Court of Additional District & Sessions Judge-No.5, Jaipur Metro-I, Jaipur. During the appeal, the appellant while pressing for his application for suspension of sentence, also prayed that the condition of depositing 20% of the amount of fine/compensation may not be imposed upon the appellant.

4. Grievance of the petitioner in the instant miscellaneous petition is that despite request, onerous condition of depositing a demand draft of the 20% of the fine/compensation amount as awarded by the trial Court has been imposed upon the petitioner while suspending the sentence, which is causing miscarriage of justice and grave prejudice to the petitioner.

5. Learned counsel for the petitioner also submits that the condition of depositing 20% of the fine/compensation amount as awarded by the trial Court is not mandatory in nature and can be relaxed in exceptional cases. In support of his contention learned Counsel for the petitioner has relied upon the judgment of Hon’ble Supreme Court in the case of Jamboo Bhandari Vs. M.P. State Industrial Development Corporation Ltd. reported in (2023) 10 SCC 446 and the judgment of this Court in the case of Asha Devi Vs. Narayan Keer & Ors. in S.B. Criminal Miscellaneous (Petition) No.7408/2024 dated 23.10.2024.

6. Per contra learned counsel for the respondent/complainant would submit that appeal is a statutory remedy and any order [2025:RJ-JP:24791] (3 of 5) [CRLMP-2346/2025] even for suspension of sentence can be passed within the scope of provisions prescribed for appeal in the statute.

7. Learned Counsel for the respondent/complainant has indicated that when Section 148 of the Negotiable Instruments (Amendment) Act, 2018 (for short, ‘Amendment Act of 2018’) provides for precondition for depositing 20% of the fine/compensation as awarded by the trial Court for the purpose of entering the appeal, no infirmity or illegality has been committed by the Appellate Court in declining the request made by the petitioner to waive such condition of depositing 20% of the cheque amount.

8. Learned Public Prosecutor has also defended the order passed by the appellate Court.

9. I have heard the rival contentions raised by the parties at Bar and also examined the record.

10. It would be relevant to refer the provisions of Section 148 of the Amendment Act of 2018, which are as under: “148. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court: Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal: [2025:RJ-JP:24791] (4 of 5) [CRLMP-2346/2025] Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant."

11. Bare perusal of Section 148 (1) would make the legislative intent quite clear. The aforesaid provisions start by non-obstante clause and mandates that while entertaining the appeal against conviction under Section 138 of the Act of 1881, the appellate Court may order the appellant to deposit such sum which shall be minimum of 20% of fine or compensation as awarded by the trial Court and which shall be in addition to any interim compensation paid by the appellant under Section 143A of the Amendment Act of 2018.

12. Thus, it has been explicitly prescribed in the provision that the sum which is required to be deposited by the appellant at the time of appeal shall be minimum 20% of the fine/compesation. Thus, it is clear that such condition is mandatory in nature and in normal circumstances, cannot be either relaxed or waived by the appellate Court. The judgment cited by learned counsel for the petitioner in the case of Jamboo Bhandari (supra) distinguishable on facts, where the Hon’ble Supreme Court has observed that if the appellate Court comes to the conclusion that the case before the appellate Court is an exceptional case, then by recording the reasons for coming to said conclusion an appropriate order can be passed to create any exception. Another judgment in the case of Asha Devi (supra) delivered by this Court is also based upon the observations made in the case of Jamboo [2025:RJ-JP:24791] (5 of 5) [CRLMP-2346/2025] Bhandari (supra) and makes it clear that it is open for the appellate Court to grant suspension of sentence without imposing the condition of depositing 20% of the fine only in rare and exceptional cases.

13. In the instant case, the petitioner has not placed the material on record, whatsoever, to satisfy the Court that the petitioner is not in a position to deposit 20% amount of the fine/compensation as awarded by the trial Court while convicting the petitioner under Section 138 of the Act of 1881.

14. Apart from the above, no other convincing reason has been supplied by the petitioner so as to bring his case within the ambit of an exceptional case.

15. Hence, the court finds no perversity or illegality in the impugned order passed by the appellate Court, as the appellate Court has not committed any error whatsoever in not dispensing with the condition of depositing 20% of the fine/compensation amount.

16. Powers under Section 528 B.N.S.S., 2018, cannot be invoked in routine or mechanical manner. In the instant case, petitioner has utterly failed to make out any case of failure of justice or any grave prejudice, if any, caused by the order passed by the appellate Court.

17. In view of above, the instant criminal miscellaneous petition is dismissed being devoid of any substance and merits.

18. All pending applications as well as stay application shall also stand disposed of. DAKSH/179 (ANAND SHARMA),J