Sachin Agarwal v. State of U.P.) passed under Section

1. Heard Sri Suvansit Kumar Jaiswal, learned counsel for the applicant, Sri J.B. Singh, learned AGA and Sri Subodh Kumar Rai along with Sri Shashi Kant Sharma, learned counsel for opposite party no.2.

2. A joint statement has been made by learned counsel for the parties that they do not propose to file any further affidavit, however, the application be decided on the basis of documents available on record. With the consent of the parties, the present application is being decided at the fresh stage.

3. This is an application U/s 528 BNSS for quashing the order dated 21.02.2025 and 12.05.2025 passed by the court of learned Sessions Judge, Bulandshahr in Criminal Appeal No. 43 of 2025 (Sachin Agarwal vs. State of U.P.) passed under Section 148 of N.I. Act pending in the court of learned Sessions Judge, Bulandshahr arising out of complaint case no. 9894 of 2018 (Chunki Saini vs. Sachin Agarwal) U/s 138 of N.I. Act, P.S. Kot Nagar, District Bulandshahr.

4. The case of the applicant is that a complaint was lodged by the opposite party no.2 against the applicant U/s 138 of N.I. Act with relation to dishonouring of a cheque which was registered as complaint no. 9894 of 2018 (Chinku Saini vs. Sachin Agarwal) and the court of ACJM, court no.2, Bulandshahr proceeded to convict the applicant while directing the applicant accused to deposit of an amount of Rs. 6.50 lac as compensation and imprisonment also. The order dated 29.01.2015 passed in complaint no. 9894 of 2018 was subject matter of challenge in an appeal preferred by the applicant, criminal appeal no. 43 of 2025 before the court of District and Sessions Judge, Bulandshahr. Along with the appeal, an application was also preferred for staying of the conviction and recovery of the said amount. The said application came up for consideration before the court of Sessions Judge, Bulandshahr on 21.02.2025 wherein the applicant was though accorded bail but he was directed to deposit 20 per cent of total amount of Rs. 6.50 lac within a period of 60 days in exercise of the powers U/s 148 of N.I. Act. An application is also stated to have been preferred for staying the direction in so far as it requires the applicant to deposit 20 per cent of the amount which was also rejected on 21.03.2025. Thereafter, an order came to be passed on 12.05.2025 rejecting the bail. Questioning the said order, the applicant has been preferred the present application.

5. A statement has been made by learned counsel for the applicant as per instructions received from his client that he is confining the relief with regard to the order dated 21.02.2025 passed in criminal appeal no. 43 of 2025 by the Court of Sessions Judge, Bulandshahr in so far as it pertains to deposit of 20 per cent of the total amount of 6.50 lac as compensation.

6. Learned counsel for the applicant has submitted that the order dated 21.02.2025 passed in criminal appeal no. 43 of 2025 in so far as it required to deposit of Rs. 1.30 lac being the 20 per cent of the total amount as determined by the trial court, cannot be sustained particularly in view of the fact that once it is within the jurisdiction of the appellate court to order payment pending appeal against conviction which shall be minimum of 20 per cent as mandated by the Hon'ble Apex Court in the case of Jamboo Bhandari vs. M.P. State Industrial Development Corporation LTD & Ors, 2023 Live Law (SC) 776, a consideration is to be made as to whether the case of the accused falls under exceptional category or not. He thus submits that there is virtually no consideration of the said aspect of the matter. As a matter of Rule, the court below has issued a direction for the payment of 20 per cent of the amount. At this juncture, learned counsel for the applicant submits that the applicant is agreeable to pay 10 per cent of the total amount of Rs. 6.50 lac by 04.06.2025. Prayer so confined by the learned counsel for the applicant's for setting aside the order dated 21.02.2025 passed in criminal appeal no. 43 of 2025 in so far as it directed for the payment of 20 per cent and remitting the matter back for passing a fresh order in accordance with law.

7. Sri Subodh Kumar Rai along with Sri Shashi Kant Sharma, learned counsel for opposite party on instructions submits that they have no objection to deposit pf 10 per cent of the total amount of Rs. 6.50 lac but the court should ensure that the said payment be made by the date which has been agreed by the applicant and the proceedings in the criminal be given a logical end within the time bound period.

8. Learned AGA has adopted the argument of learned counsel for opposite party no.2.

9. I have heard the submissions so made across the bar and perused the record carefully.

10. Section 148 of N.I Act empowers the appellate court to order payment pending appeal against conviction which shall be a minimum of 20 per cent of fine or compensation awarded by the court. Section 148 of N.I. Act came up for consideration before the Hon'ble Apex Court in the case of Jamboo Bhandari (Supra) wherein paragraph 6 to 10 has observed as under: "6. What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded.

7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.

8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea.

9. We disagree with the above submission. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not.

10. In these cases, both the Sessions Courts and the High Court have proceeded on the erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception."

7. Applying the principles of law cull down in the above noted decision in the facts of the case, and irresistible conclusion stands drawn that while exercising the powers U/s 148 of N.I. Act the court has to evaluate and satisfy as to whether the case of the accused falls within exceptional category or not. In nutshell, the direction for deposit of 20 per cent should not be as a matter of absolute rule. Since in the present case in hand, the Court finds that the mandate of law laid in the case of Jamboo Bhandari (Supra) has not been followed, thus in the opinion of the Court, the order cannot be sustained in so far it directs for the payment of 20 per cent of the total amount of Rs. 6.50 lac. Accordingly, the application is being disposed of in the following terms: (i) The order dated 21.02.2025 passed in criminal appeal no. 43 of 2025 by the court of Sessions Judge, Bulandshahr (Sachin Agrawal vs. State of U.P.) in so far as direction the payment of 20 per cent of the total amount of Rs.6.50 lac is set aside. (ii) The matter stands remitted back to the court below to pass a fresh order strictly in accordance with law. (iii) Since the statement made by the counsel for the applicant as per the instructions from the applicant is agreeable and willing to deposit 10 per cent of the said amount of Rs. 6.50 lac, thus, the same shall be deposited by the appellant by 04.06.2025. (iv) As the applicant and opposite party no.2 are represented through their counsels, thus it would be taken that they have full knowledge of the order passed today. (v) Statements have been made by the counsel for the applicant and the opposite party no.2 as per the instructions from their client that they shall not taken unnecessary adjournments in the matter and in case any adjournment is being sought, then the same would be on extreme urgency that to not beyond five adjournemts. The adjournment so granted shall not be beyond seven days at a stretch.

8. In case of default of the condition of payment of 10 per cent of the total amount of Rs. 6.50 lac by 04.06.2025, the interim order stands vacated and the court below shall proceed in accordance with law. Order Date :- 23.5.2025 C. MANI CHANDRAMANI VERMA High Court of Judicature at Allahabad

1. Heard Sri Suvansit Kumar Jaiswal, learned counsel for the applicant, Sri J.B. Singh, learned AGA and Sri Subodh Kumar Rai along with Sri Shashi Kant Sharma, learned counsel for opposite party no.2.

2. A joint statement has been made by learned counsel for the parties that they do not propose to file any further affidavit, however, the application be decided on the basis of documents available on record. With the consent of the parties, the present application is being decided at the fresh stage.

3. This is an application U/s 528 BNSS for quashing the order dated 21.02.2025 and 12.05.2025 passed by the court of learned Sessions Judge, Bulandshahr in Criminal Appeal No. 43 of 2025 (Sachin Agarwal vs. State of U.P.) passed under Section 148 of N.I. Act pending in the court of learned Sessions Judge, Bulandshahr arising out of complaint case no. 9894 of 2018 (Chunki Saini vs. Sachin Agarwal) U/s 138 of N.I. Act, P.S. Kot Nagar, District Bulandshahr.

4. The case of the applicant is that a complaint was lodged by the opposite party no.2 against the applicant U/s 138 of N.I. Act with relation to dishonouring of a cheque which was registered as complaint no. 9894 of 2018 (Chinku Saini vs. Sachin Agarwal) and the court of ACJM, court no.2, Bulandshahr proceeded to convict the applicant while directing the applicant accused to deposit of an amount of Rs. 6.50 lac as compensation and imprisonment also. The order dated 29.01.2015 passed in complaint no. 9894 of 2018 was subject matter of challenge in an appeal preferred by the applicant, criminal appeal no. 43 of 2025 before the court of District and Sessions Judge, Bulandshahr. Along with the appeal, an application was also preferred for staying of the conviction and recovery of the said amount. The said application came up for consideration before the court of Sessions Judge, Bulandshahr on 21.02.2025 wherein the applicant was though accorded bail but he was directed to deposit 20 per cent of total amount of Rs. 6.50 lac within a period of 60 days in exercise of the powers U/s 148 of N.I. Act. An application is also stated to have been preferred for staying the direction in so far as it requires the applicant to deposit 20 per cent of the amount which was also rejected on 21.03.2025. Thereafter, an order came to be passed on 12.05.2025 rejecting the bail. Questioning the said order, the applicant has been preferred the present application.

5. A statement has been made by learned counsel for the applicant as per instructions received from his client that he is confining the relief with regard to the order dated 21.02.2025 passed in criminal appeal no. 43 of 2025 by the Court of Sessions Judge, Bulandshahr in so far as it pertains to deposit of 20 per cent of the total amount of 6.50 lac as compensation.

6. Learned counsel for the applicant has submitted that the order dated 21.02.2025 passed in criminal appeal no. 43 of 2025 in so far as it required to deposit of Rs. 1.30 lac being the 20 per cent of the total amount as determined by the trial court, cannot be sustained particularly in view of the fact that once it is within the jurisdiction of the appellate court to order payment pending appeal against conviction which shall be minimum of 20 per cent as mandated by the Hon'ble Apex Court in the case of Jamboo Bhandari vs. M.P. State Industrial Development Corporation LTD & Ors, 2023 Live Law (SC) 776, a consideration is to be made as to whether the case of the accused falls under exceptional category or not. He thus submits that there is virtually no consideration of the said aspect of the matter. As a matter of Rule, the court below has issued a direction for the payment of 20 per cent of the amount. At this juncture, learned counsel for the applicant submits that the applicant is agreeable to pay 10 per cent of the total amount of Rs. 6.50 lac by 04.06.2025. Prayer so confined by the learned counsel for the applicant's for setting aside the order dated 21.02.2025 passed in criminal appeal no. 43 of 2025 in so far as it directed for the payment of 20 per cent and remitting the matter back for passing a fresh order in accordance with law.

7. Sri Subodh Kumar Rai along with Sri Shashi Kant Sharma, learned counsel for opposite party on instructions submits that they have no objection to deposit pf 10 per cent of the total amount of Rs. 6.50 lac but the court should ensure that the said payment be made by the date which has been agreed by the applicant and the proceedings in the criminal be given a logical end within the time bound period.

8. Learned AGA has adopted the argument of learned counsel for opposite party no.2.

9. I have heard the submissions so made across the bar and perused the record carefully.

10. Section 148 of N.I Act empowers the appellate court to order payment pending appeal against conviction which shall be a minimum of 20 per cent of fine or compensation awarded by the court. Section 148 of N.I. Act came up for consideration before the Hon'ble Apex Court in the case of Jamboo Bhandari (Supra) wherein paragraph 6 to 10 has observed as under: "6. What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded.

7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.

8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea.

9. We disagree with the above submission. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not.

10. In these cases, both the Sessions Courts and the High Court have proceeded on the erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception."

7. Applying the principles of law cull down in the above noted decision in the facts of the case, and irresistible conclusion stands drawn that while exercising the powers U/s 148 of N.I. Act the court has to evaluate and satisfy as to whether the case of the accused falls within exceptional category or not. In nutshell, the direction for deposit of 20 per cent should not be as a matter of absolute rule. Since in the present case in hand, the Court finds that the mandate of law laid in the case of Jamboo Bhandari (Supra) has not been followed, thus in the opinion of the Court, the order cannot be sustained in so far it directs for the payment of 20 per cent of the total amount of Rs. 6.50 lac. Accordingly, the application is being disposed of in the following terms: (i) The order dated 21.02.2025 passed in criminal appeal no. 43 of 2025 by the court of Sessions Judge, Bulandshahr (Sachin Agrawal vs. State of U.P.) in so far as direction the payment of 20 per cent of the total amount of Rs.6.50 lac is set aside. (ii) The matter stands remitted back to the court below to pass a fresh order strictly in accordance with law. (iii) Since the statement made by the counsel for the applicant as per the instructions from the applicant is agreeable and willing to deposit 10 per cent of the said amount of Rs. 6.50 lac, thus, the same shall be deposited by the appellant by 04.06.2025. (iv) As the applicant and opposite party no.2 are represented through their counsels, thus it would be taken that they have full knowledge of the order passed today. (v) Statements have been made by the counsel for the applicant and the opposite party no.2 as per the instructions from their client that they shall not taken unnecessary adjournments in the matter and in case any adjournment is being sought, then the same would be on extreme urgency that to not beyond five adjournemts. The adjournment so granted shall not be beyond seven days at a stretch.

8. In case of default of the condition of payment of 10 per cent of the total amount of Rs. 6.50 lac by 04.06.2025, the interim order stands vacated and the court below shall proceed in accordance with law. Order Date :- 23.5.2025 C. MANI CHANDRAMANI VERMA High Court of Judicature at Allahabad