Ajay Kumar Sharma v. State) which along
Case Details
Neutral Citation No. - 2025:AHC:114158 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 16038 of 2025 Applicant :- Ajay Kumar Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjay Mishra Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Supplementary affidavit filed today is taken on record.
Legal Reasoning
2. On the oral request of the learned counsel for the applicant, he is permitted to correct the year of the appeal during the course of the day. 3. Heard Sri Sanjay Mishra, learned counsel for the applicant as well as Sri Sudhir Kumar Chandraul, learned AGA for the State and Sri Aman Kumar Shukla (AoR A/K 0142/2012) holding brief of Sri Kandarp Srivastava for the opposite party no. 2. 4. A joint statement has been made by the learned counsel for the parties that they do not propose to file any affidavit and the application be decided on the basis of the documents available on record. With the consent of the parties, the application be decided at the fresh stage. 5. The case of the applicant is that post dishonor of the cheque proceedings under Section 138 of the NI Act stood drawn by the opposite party no. 2 which culminated into an order of conviction of the applicant under Section 138 of the NI Act on 18.03.2025 by Presiding Officer, Special Judge 138 NI Act in Criminal Complaint Case No. 6905097 of 2018 whereby the fine of an amount of Rs. 1,05,40,000/- was imposed and the applicant was convicted for rigorous imprisonment of one year. 6. Assailing the conviction order, the applicant preferred a Criminal Appeal No. 72 of 2025 (Ajay Kumar Sharma Vs. State) which along with the application for staying of the conviction and recovery of the amount in which on 05.04.2025 the Court of Sessions Judge in Criminal Appeal No. 72 of 2025, Agra proceeded to pass an order for staying the conviction is subject to deposit of 20% of the fine as determined by the court below. 7. Questioning the order dated 05.04.2025 to the extent of deposit of 20% of the entire penal amount within a period of two moths passed by Sessions Judge, Agra, the present application has been filed. 8. This Court entertained the application on 27.05.2025 while passing the following orders.- "1. Contention of the learned counsel for the applicant is that on a complaint being lodged by the opposite party no.2 against the applicant under Section 138 of the N.I. Act, the Presiding Officer, Special Judge, under Section 138 of the N.I. Act proceeded to convict the applicant while ordering for simple imprisonment for a period of one year and to deposit of Rs.1,05,00,000/- as compensation/fine and in addition to the same Rs.40,000/- before the State Government. Assailing the order of conviction the applicant preferred Criminal Appeal No.72 of 2025 and the court of Sessions Judge, Agra while exercising the powers under Section 148 of the N.I. Act proceeded to stay the conviction and recovery of the fine subject to deposit of the 20% of an amount of Rs.1,05,40,000/-. Further contention of the learned counsel for the applicant is that a blanket direction has been issued by the court below which is not as per the mandate of the Hon'ble Apex Court in the case of Jamboo Bhandari v. M.P. State Industrial development; 2023 (10) SCC 466. 2. Argument is that a consideration ought to have been made by the court below as to whether the case of the applicant comes within the exceptional category or not. 3. Learned counsel for the applicant as per the instructions submits that the applicant shall be depositing 10% of the total amount of Rs.1,05,40,000/- by 13.6.2025. 4. Matter requires consideration. 5. Learned AGA has accepted notice on behalf of opposite party no. 1-State. 6. Issue notice to opposite party no. 2. 7. Opposite parties shall file their counter affidavit by 07.07.2025. Rejoinder may be any, affidavit, 8. Put up this case as fresh on 15.07.2025. filed by 11.07.2025. if 9. Till the next date of listing, the order dated 5.04.2025 passed by Sessions Judge, Agra in Criminal Appeal No. 72 of 2025, insofar as it directs to applicant to deposit 20% of the fine amount (Rs. 8 lakhs) is stayed, subject to deposit of 10% of Rs. 1,05,40,000 by 13.06.2025. 10. In case, the applicant does not submit a proof of such deposit before the court below by 16.06.2025, the interim order stands vacated without any reference to the Bench and the court below shall proceed with the matter." 9. Appearance has been put by the opposite party no. 2 through its counsel. Learned counsel for the applicant has submitted that the order dated 05.04.2025 passed by the Sessions Judge, Agra in Criminal Appeal No. 75 of 2025 in exercise of the powers under Section 148 of the NI Act cannot be sustained for the simple reason that the court below as a matter of rule has directed for deposit of the 20% of the fine without considering the case of the applicant whether it falls under the exceptional category or not. Reliance has been placed upon the Jamboo Bhandari v. M.P. State Industrial development; 2023 (10) SCC 466 and Muskan Enterprises vs The State Of Punjab: 2024 INSC 1046. Learned counsel for the applicant while inviting the attention towards the supplementary affidavit filed on 14.07.2025 submits that the applicant had deposited 10% of the total amount. He submits that the order dated 05.04.2025 insofar as it issues a direction to the applicant to deposit 20% of the entire penal amount within two months, the order be set aside and the matter be remitted back to the court below to pass a fresh order. 10. Learned AGA as well as the counsel for the opposite party no. 2, on the other hand, submit that they do not dispute the said legal position according to the counsel for the opposite party no. 2, as per the instructions received from his client, the amount of 10% has been deposited as contended by the learned counsel for the applicant, he submits that the order be set aside and the matter be remitted back to the court below to pass a fresh order. 11. I have heard the submissions so made across the bar and perused the record carefully. 12. Apparently, post lodging of the proceedings under Section 138 of the NI Act, the applicant came to be convicted on 18.03.2025 by the trial court while directing rigorous imprisonment for one year and deposit of fine amount to the tune of Rs. 1,05,00,000/-. Against the same, the applicant preferred Criminal Appeal No. 72 of 2025 before the Sessions Judge in which on 05.04.2025, the court of Sessions Judge, Agra proceeded to issue a direction for deposit of 20% of the penal amount as determined by the trial court within a period of two months while staying the conviction to recovery. 13. In the opinion of the Court, the order dated 05.04.2025 under challenge does not reflect that there was any consideration made upon the fact as to whether the case of the applicant falls within the exceptional category or not as per the judgment in Jamboo Bhandari (supra) and Muskan Enterprises (supra). As a matte of fact, it appears before the court below looking into the Section 148 of the NI Act had issued a blanket direction. Since there is no consideration to the exceptional category as mandated by Hon'ble Apex Court in Jamboo Bhandari (supra) and Muskan Enterprises (supra), thus, the order dated 05.04.2025 passed by the Sessions Judge, Agra in Criminal Appeal No. 72 of 2025 insofar as it issues a blanket direction for deposit of 20% cannot be sustained. 14. Accordingly, the application is being decided in the following terms.- (a) the order dated 05.04.2025 passed by the Sessions Judge, Agra in Criminal Appeal No. 72 of 2025 under Section 148 of the NI Act insofar as it pertains to issuance of a direction to deposit 20% of the fine is set aside; (b) the matter stands remitted back to the court below to pass a fresh order. 15. Since in pursuance of the order dated 27.05.2025 the applicant had deposited 10% of the amount, thus, the deposit of the 10% of the amount shall be subject to the final order to be passed post remand to the court below for considering the case of the applicant/appellant in view of the mandate in Jamboo Bhandari (supra) and Muskan Enterprises (supra). Learned counsel for the applicant as well as the counsel for the applicant no. 2 has made a statement at bar that as per the instructions received from his client they would not take any unnecessary adjournments, thus, the court below is to undertake the process and conclude the same with most expedition without granting unnecessary adjournments and, in case, any adjournment is granted then the same should be in exceptional circumstances not beyond the five days. 16. With the above observations, the application stands disposed of. Order Date :- 15.7.2025 Rajesh Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad