Mohan Singh v. State of U.P. another) arising out of Summoning Case No

1. Vakalatnama has been filed on behalf of O.P. No.2 by Sri A.K. Mishra (AoR No.A/A1505/2012), which is taken on record.

2. Heard Sri Arun Kumar Dubey, learned counsel for the applicants, Sri S.K. Singh, the learned A.G.A. and Sri A.K. Mishra, learned counsel for the O.P. No.2.

3. A joint statement has been made by learned counsel for the parties that they do not propose to file affidavit and the application be decided on the basis of the documents available on record.

4. With the consent of the parties, the application is being decided at the fresh stage.

5. This is an application u/s 528 of BNSS preferred by the applicant for quashing of the impugned order dated 17.2.2025 passed by learned Sessions Judge, Mathura in Criminal Appeal No.33 of 2025 (Mohan Singh Vs. State of U.P. & another) arising out of Summoning Case No.3482 of 2019, under Section 138 of Negotiable Instrument Act, Police Station Kotwali Mathura, District Mathura, upto the extent of deposit of 30% of fine imposed i.e. Rs.2,10,000/-, to secure the ends of justice

6. Learned counsel for the applicant has submitted that pursuant to the lodging of the proceeding under Section 138 of the N.I.Act by the O.P. No.2 against the applicant, the same was registered as Complaint Case No.3482 of 2019 and by virtue of the order of the Presiding Officer, Addl. Court, Mathura dated 05.02.2025, the applicant was convicted while requiring the applicant undergo rigorous punishment of six months and deposit of Rs.7,00,000/- as fine along with other conditions. The applicant claims to have preferred an appeal bearing no. 33 of 2025. Along with the appeal, an application for stay of conviction and the recovery of the amount was also sought. The stay application came up for consideration before the court below on 17.02.2025 whereby the applicant was enlarged on bail on furnishing of the sureties/ bond. However, a direction was issued for deposit of 30% of the amount of Rs.7,00,000/- being Rs.2,10,000/-. Learned counsel for the applicant has submitted in view of the decision of the Hon'ble Apex Court in the case of Jamboo Bhandari Vs. M.P. State Industrial Corporation Ltd., (2023) 0 SC 8855, a duty is cast upon the Appellate Court to exercise appellate power against the pending appeal against conviction in such a manner that the same is in conformity with the provisions of law. He submits that that in the present case in hand, though in Section (1) of Section 148 of the N.I. Act provides for stay of the conviction subject to deposit of minimum 20% of the final compensation awarded by the trial court, but as held by the Hon'ble Apex Court in Jamboo Bhandari (supra), that a consideration is to be made as to whether the case of the appellant falls within the exception with respect to the requirement of deposit of 20% of the compensation/fine. He submits that the lower appellate court has proceeded to award 20% compensation to the complainant without considering the aforesaid aspects of the matter. He submits that the case of the applicant falls within the exceptional cases wherein there are financial constraints and distress and he is not in a position to deposit such a huge amount and financial liability as being sought to be slapped in that regard. According to the learned counsel for the applicant, the order dated 17.02.2025, passed by the court below be aside in so far as it requires the deposit of 30% of the fine of Rs.2,10,000/- out of the total amount of Rs.7,00,000/- and the matter be remitted back to pass fresh orders strictly in accordance with the decision in the case of Jamboo Bhandari (supra).

7. Learned A.G.A. as well as Sri A.K. Mishra, who appears for the State/O.P. No.2 has not disputed the factum that in Jamboo Bhandari (supra), the Hon'ble Supreme Court had the occasion to consider the provisions contained under Section 148 of the N.I. Act and according to them, the order which is being sought to be impugned in the present proceeding has not considered the entire issue and the said judgment is not in adherence to the mandate in the case of Jamboo Bhandari (supra) and according to them, the order be set aside and matter be remitted back to pass fresh orders.

8. Having heard the submissions made across the Bar, the only question which arises for consideration is whether the order which is impugned is in conformity and in consonance with the mandate of the Hon'ble Apex Court in the case of Jamboo Bhandari (supra) or not. Apparently from the perusal of the order, it is clear that there is nothing on record to suggest that exceptional circumstances were considered and further the directions contained in the case of Jamboo Bhandari (supra) has also not been considered in correct perspective.

9. Looking into the fact that the parties have already represented through their counsels, and a joint statement has been made that the order be set aside and the matter be remitted back. Accordingly, the application is allowed. The order dated 17.2.2025 is set aside and the matter is remitted back to the court below to pass a fresh order strictly in accordance with law.

10. Since the applicant as well as O.P. no.2 are represented through their counsels and the order has been passed in their presence, thus it will be deemed that they have full knowledge of the order and they shall file certified copy of the order before the court below within 15 days from today for facilitating early disposal of the case. Order Date :- 11.4.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

1. Vakalatnama has been filed on behalf of O.P. No.2 by Sri A.K. Mishra (AoR No.A/A1505/2012), which is taken on record.

2. Heard Sri Arun Kumar Dubey, learned counsel for the applicants, Sri S.K. Singh, the learned A.G.A. and Sri A.K. Mishra, learned counsel for the O.P. No.2.

3. A joint statement has been made by learned counsel for the parties that they do not propose to file affidavit and the application be decided on the basis of the documents available on record.

4. With the consent of the parties, the application is being decided at the fresh stage.

5. This is an application u/s 528 of BNSS preferred by the applicant for quashing of the impugned order dated 17.2.2025 passed by learned Sessions Judge, Mathura in Criminal Appeal No.33 of 2025 (Mohan Singh Vs. State of U.P. & another) arising out of Summoning Case No.3482 of 2019, under Section 138 of Negotiable Instrument Act, Police Station Kotwali Mathura, District Mathura, upto the extent of deposit of 30% of fine imposed i.e. Rs.2,10,000/-, to secure the ends of justice

6. Learned counsel for the applicant has submitted that pursuant to the lodging of the proceeding under Section 138 of the N.I.Act by the O.P. No.2 against the applicant, the same was registered as Complaint Case No.3482 of 2019 and by virtue of the order of the Presiding Officer, Addl. Court, Mathura dated 05.02.2025, the applicant was convicted while requiring the applicant undergo rigorous punishment of six months and deposit of Rs.7,00,000/- as fine along with other conditions. The applicant claims to have preferred an appeal bearing no. 33 of 2025. Along with the appeal, an application for stay of conviction and the recovery of the amount was also sought. The stay application came up for consideration before the court below on 17.02.2025 whereby the applicant was enlarged on bail on furnishing of the sureties/ bond. However, a direction was issued for deposit of 30% of the amount of Rs.7,00,000/- being Rs.2,10,000/-. Learned counsel for the applicant has submitted in view of the decision of the Hon'ble Apex Court in the case of Jamboo Bhandari Vs. M.P. State Industrial Corporation Ltd., (2023) 0 SC 8855, a duty is cast upon the Appellate Court to exercise appellate power against the pending appeal against conviction in such a manner that the same is in conformity with the provisions of law. He submits that that in the present case in hand, though in Section (1) of Section 148 of the N.I. Act provides for stay of the conviction subject to deposit of minimum 20% of the final compensation awarded by the trial court, but as held by the Hon'ble Apex Court in Jamboo Bhandari (supra), that a consideration is to be made as to whether the case of the appellant falls within the exception with respect to the requirement of deposit of 20% of the compensation/fine. He submits that the lower appellate court has proceeded to award 20% compensation to the complainant without considering the aforesaid aspects of the matter. He submits that the case of the applicant falls within the exceptional cases wherein there are financial constraints and distress and he is not in a position to deposit such a huge amount and financial liability as being sought to be slapped in that regard. According to the learned counsel for the applicant, the order dated 17.02.2025, passed by the court below be aside in so far as it requires the deposit of 30% of the fine of Rs.2,10,000/- out of the total amount of Rs.7,00,000/- and the matter be remitted back to pass fresh orders strictly in accordance with the decision in the case of Jamboo Bhandari (supra).

7. Learned A.G.A. as well as Sri A.K. Mishra, who appears for the State/O.P. No.2 has not disputed the factum that in Jamboo Bhandari (supra), the Hon'ble Supreme Court had the occasion to consider the provisions contained under Section 148 of the N.I. Act and according to them, the order which is being sought to be impugned in the present proceeding has not considered the entire issue and the said judgment is not in adherence to the mandate in the case of Jamboo Bhandari (supra) and according to them, the order be set aside and matter be remitted back to pass fresh orders.

8. Having heard the submissions made across the Bar, the only question which arises for consideration is whether the order which is impugned is in conformity and in consonance with the mandate of the Hon'ble Apex Court in the case of Jamboo Bhandari (supra) or not. Apparently from the perusal of the order, it is clear that there is nothing on record to suggest that exceptional circumstances were considered and further the directions contained in the case of Jamboo Bhandari (supra) has also not been considered in correct perspective.

9. Looking into the fact that the parties have already represented through their counsels, and a joint statement has been made that the order be set aside and the matter be remitted back. Accordingly, the application is allowed. The order dated 17.2.2025 is set aside and the matter is remitted back to the court below to pass a fresh order strictly in accordance with law.

10. Since the applicant as well as O.P. no.2 are represented through their counsels and the order has been passed in their presence, thus it will be deemed that they have full knowledge of the order and they shall file certified copy of the order before the court below within 15 days from today for facilitating early disposal of the case. Order Date :- 11.4.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad