Kamlesh v. State of U.P. and Another) in Complaint Case No

2. Heard Shri Sudhir Kumar Tripathi, learned counsel for the applicant, Shri S.K. Singh, learned AGA for the State and Ms. Meenu Chaudhary, learned counsel for the opposite party no.2.

3. This application under Section 528 BNSS has been filed by the applicant to quash the part of order dated 09.06.2025 to the extent to direct the learned trial Court to accept only 20% amount as fine instead of 50% of Rs. 6,00,000/- as well as stay the amount of Rs. 2,00,000/- directed to deposit in the account of State Government in Criminal Appeal No.45 of 2025 (Kamlesh Versus State of U.P. and Another) in Complaint Case No. 4733 of 2015, under Section 138 (Negotiable Instrument Act), Police Station Lalganj, District Basti, now pending in the Court of Sessions Judge Basti.

4. A joint submission 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 documents available on record. With consent of the parties the application is decided at the fresh stage.

5. The case of the applicant is that post lodging of the proceeding under Section 138 N.I. Act, the applicant herein came to be convicted under Section N.I. Act, 138 of the N.I. Act with rigorous imprisonment of one year and fine/compensation of Rs. 8,00,000/ on 20.05.2025 by Additional Chief Judicial Magistrate- III, Court No.11, Basti in Complaint Case No.3204733 of 2015.

6. Assailing the conviction and sentence the applicant herein preferred Criminal Appeal No.45 of 2025 (Kamlesh Versus State of U.P. and Another) alongwith an application for staying of the conviction, sentence and recovery of the amount and on 09.05.2024 the order came to be passed by Court below whereby, the conviction, sentence and recovery was stayed subject to deposit of the half of the amount of fine of Rs. 6,00,000/-.

7. Questioning the said order, the applicant has been filed the present application.

8. On 18.07.2025, this Court proceeded to pass the following order:- "1. Contention of learned counsel for the applicant is that post lodging of the complaint under section 138 of N.I. Act, applicant came to be convicted by the Court of Addl. Chief Judicial Magistrate-III, Court No. 11, Basti in Complaint Case No.4733 of 2015, against which, the applicant had preferred an Appeal No.45 of 2025 before the Sessions Judge along with a stay application for stay of conviction and recovery of the amount and the court below had directed the applicant to deposit 50% of the amount so determined by the court below. Learned counsel for the applicant submits that the court below has not considered the dictum of the Hon'ble Apex Court in Jamboo Bhandari Vs. M.P. State Industrial Corporation Ltd., (2023) 0 SC 8855 and Muskan Enterprises and Another vs. State of Punjab and another, Criminal Appeal No.5491 of 2024 with regard to determination as to whether the case of the applicant falls under the exceptional category or not. Learned counsel for the applicant as per the instructions received from his client submits that the applicant is willing to deposit 15% of the amount determined by the court below.

2. Matter requires consideration.

3. Notice on behalf of opposite party no.1 has been accepted by the learned A.G.A.

4. Issue notice to Opposite Party no.2.

5. Opposite Party No.2 may file its response within six weeks. Rejoinder, if any, may be filed within two weeks thereafter.

6. Put up this case on 11.08.2025 as fresh at 02:00 P.M.

7. Till the next date of listing, further proceedings with respect to order dated 09.06.2025 passed in Criminal Appeal No. 45 of 2025 relating to Complaint Case No. 4733 of 2015, under section 138 Negotiable Instrument Act, Police Station-Lalganj District - Basti, pending in the court of Session Judge Basti directing the applicant to deposit 50% of the amount so determined by the court below, so far as it relates to the applicant, shall remain stayed, subject to deposit of 15% of the amount determined by the court below.

8. In case, applicant does not deposit 15% of fine by the next date fixed, the interim protection accorded to him shall stand vacated without further reference to this Court. "

9. Learned counsel for the applicant submits that direction so contained in the order dated 09.06.2025 passed by Sessions Judge, Basti in Criminal Appeal No.45 of 2025 (Kamlesh Versus State of U.P. and Another) requiring the applicant to deposit 50% of the total amount of Rs.6,00,000/- determined to be the fine/compensation of Rs. 2,00,000/- to the State Government is patently illegal and contrary to law and particularly when there has no consideration about the fact as to whether the claim of the applicant falls under the exceptional category or not. Learned counsel for the applicant submits that the Court below has not considered the dictum of the Hon'ble Apex Court in Jamboo Bhandari Vs. M.P. State Industrial Corporation Ltd.,(2023) 0 SC 8855 and Muskan Enterprises and Another Vs. State of Punjab and another, Criminal Appeal No. 5491 of 2024.

10. Learned counsel for the applicant submits that since the said exercise is lacking the order be set aside and the matter be remitted back to Court below to pass fresh orders.

11. Learned A.G.A. and learned counsel for the opposite party no.2 submit that the sword of conviction is hanging in the neck of the applicant. However, they could not dispute the fact that the case of the applicant whether it falls under the exceptional category or not has not been considered. They submit that the order be set aside and the matter be remitted back to Court below to pass fresh orders.

12. I have heard learned counsel for the parties and gone through the records carefully.

13. In the opinion of the Court, the considerations which ought to have been given weightage as per the mandate in Jamboo Bhandari (supra) and Muskan Enterprises (supra) has not been adhered to, in order to determine as to whether the case of the applicant falls under exceptional category or not. Since the said exercise is lacking, thus, the present application is being decided in the following terms: (a). The order dated 09.06.2025 to the extent to direct the learned trial Court to accept only 20% amount as fine instead of 50% of Rs. 6,00,000/- as well as stay the amount of Rs. 2,00,000/- directed to deposit in the account of State Government in Criminal Appeal No.45 of 2025 (Kamlesh Versus State of U.P. and Another) in Complaint Case No. 4733 of 2015 is set aside. (b). The matter stands remitted back to the Court of Sessions Judge Basti to pass fresh order strictly in accordance with law. (c) The deposit of 15% in pursuant of the interim order passed by this Court on 18.07.2025 shall be subject to the final orders to be passed post remand.

14. Learned counsel for the applicant as well as counsel appearing for the opposite party No.2 have made a joint statement that they are in receipt of instructions, according to which, the party shall not take any unnecessary adjournments, thus, this Court is directed to the court below to pass fresh orders strictly in accordance with law, in case, any adjournment is being granted for any eventuality then the same should be on the genuine reasons and not more than seven days at a stretch.

15. It goes without saying that the appeal be also decided as per the mandate of the Act.

16. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 28.08.2025 and the court below shall proceed to decide the said proceeding with most expedition.

17. Needless to point out that the Court has not adjudicated upon the merits of the case.

18. Accordingly, the application stands disposed of. Order Date :- 11.8.2025 Imtiyaz (Vikas Budhwar, J) IMTIYAZ AHMAD High Court of Judicature at Allahabad

2. Heard Shri Sudhir Kumar Tripathi, learned counsel for the applicant, Shri S.K. Singh, learned AGA for the State and Ms. Meenu Chaudhary, learned counsel for the opposite party no.2.

3. This application under Section 528 BNSS has been filed by the applicant to quash the part of order dated 09.06.2025 to the extent to direct the learned trial Court to accept only 20% amount as fine instead of 50% of Rs. 6,00,000/- as well as stay the amount of Rs. 2,00,000/- directed to deposit in the account of State Government in Criminal Appeal No.45 of 2025 (Kamlesh Versus State of U.P. and Another) in Complaint Case No. 4733 of 2015, under Section 138 (Negotiable Instrument Act), Police Station Lalganj, District Basti, now pending in the Court of Sessions Judge Basti.

4. A joint submission 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 documents available on record. With consent of the parties the application is decided at the fresh stage.

5. The case of the applicant is that post lodging of the proceeding under Section 138 N.I. Act, the applicant herein came to be convicted under Section N.I. Act, 138 of the N.I. Act with rigorous imprisonment of one year and fine/compensation of Rs. 8,00,000/ on 20.05.2025 by Additional Chief Judicial Magistrate- III, Court No.11, Basti in Complaint Case No.3204733 of 2015.

6. Assailing the conviction and sentence the applicant herein preferred Criminal Appeal No.45 of 2025 (Kamlesh Versus State of U.P. and Another) alongwith an application for staying of the conviction, sentence and recovery of the amount and on 09.05.2024 the order came to be passed by Court below whereby, the conviction, sentence and recovery was stayed subject to deposit of the half of the amount of fine of Rs. 6,00,000/-.

7. Questioning the said order, the applicant has been filed the present application.

8. On 18.07.2025, this Court proceeded to pass the following order:- "1. Contention of learned counsel for the applicant is that post lodging of the complaint under section 138 of N.I. Act, applicant came to be convicted by the Court of Addl. Chief Judicial Magistrate-III, Court No. 11, Basti in Complaint Case No.4733 of 2015, against which, the applicant had preferred an Appeal No.45 of 2025 before the Sessions Judge along with a stay application for stay of conviction and recovery of the amount and the court below had directed the applicant to deposit 50% of the amount so determined by the court below. Learned counsel for the applicant submits that the court below has not considered the dictum of the Hon'ble Apex Court in Jamboo Bhandari Vs. M.P. State Industrial Corporation Ltd., (2023) 0 SC 8855 and Muskan Enterprises and Another vs. State of Punjab and another, Criminal Appeal No.5491 of 2024 with regard to determination as to whether the case of the applicant falls under the exceptional category or not. Learned counsel for the applicant as per the instructions received from his client submits that the applicant is willing to deposit 15% of the amount determined by the court below.

2. Matter requires consideration.

3. Notice on behalf of opposite party no.1 has been accepted by the learned A.G.A.

4. Issue notice to Opposite Party no.2.

5. Opposite Party No.2 may file its response within six weeks. Rejoinder, if any, may be filed within two weeks thereafter.

6. Put up this case on 11.08.2025 as fresh at 02:00 P.M.

7. Till the next date of listing, further proceedings with respect to order dated 09.06.2025 passed in Criminal Appeal No. 45 of 2025 relating to Complaint Case No. 4733 of 2015, under section 138 Negotiable Instrument Act, Police Station-Lalganj District - Basti, pending in the court of Session Judge Basti directing the applicant to deposit 50% of the amount so determined by the court below, so far as it relates to the applicant, shall remain stayed, subject to deposit of 15% of the amount determined by the court below.

8. In case, applicant does not deposit 15% of fine by the next date fixed, the interim protection accorded to him shall stand vacated without further reference to this Court. "

9. Learned counsel for the applicant submits that direction so contained in the order dated 09.06.2025 passed by Sessions Judge, Basti in Criminal Appeal No.45 of 2025 (Kamlesh Versus State of U.P. and Another) requiring the applicant to deposit 50% of the total amount of Rs.6,00,000/- determined to be the fine/compensation of Rs. 2,00,000/- to the State Government is patently illegal and contrary to law and particularly when there has no consideration about the fact as to whether the claim of the applicant falls under the exceptional category or not. Learned counsel for the applicant submits that the Court below has not considered the dictum of the Hon'ble Apex Court in Jamboo Bhandari Vs. M.P. State Industrial Corporation Ltd.,(2023) 0 SC 8855 and Muskan Enterprises and Another Vs. State of Punjab and another, Criminal Appeal No. 5491 of 2024.

10. Learned counsel for the applicant submits that since the said exercise is lacking the order be set aside and the matter be remitted back to Court below to pass fresh orders.

11. Learned A.G.A. and learned counsel for the opposite party no.2 submit that the sword of conviction is hanging in the neck of the applicant. However, they could not dispute the fact that the case of the applicant whether it falls under the exceptional category or not has not been considered. They submit that the order be set aside and the matter be remitted back to Court below to pass fresh orders.

12. I have heard learned counsel for the parties and gone through the records carefully.

13. In the opinion of the Court, the considerations which ought to have been given weightage as per the mandate in Jamboo Bhandari (supra) and Muskan Enterprises (supra) has not been adhered to, in order to determine as to whether the case of the applicant falls under exceptional category or not. Since the said exercise is lacking, thus, the present application is being decided in the following terms: (a). The order dated 09.06.2025 to the extent to direct the learned trial Court to accept only 20% amount as fine instead of 50% of Rs. 6,00,000/- as well as stay the amount of Rs. 2,00,000/- directed to deposit in the account of State Government in Criminal Appeal No.45 of 2025 (Kamlesh Versus State of U.P. and Another) in Complaint Case No. 4733 of 2015 is set aside. (b). The matter stands remitted back to the Court of Sessions Judge Basti to pass fresh order strictly in accordance with law. (c) The deposit of 15% in pursuant of the interim order passed by this Court on 18.07.2025 shall be subject to the final orders to be passed post remand.

14. Learned counsel for the applicant as well as counsel appearing for the opposite party No.2 have made a joint statement that they are in receipt of instructions, according to which, the party shall not take any unnecessary adjournments, thus, this Court is directed to the court below to pass fresh orders strictly in accordance with law, in case, any adjournment is being granted for any eventuality then the same should be on the genuine reasons and not more than seven days at a stretch.

15. It goes without saying that the appeal be also decided as per the mandate of the Act.

16. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 28.08.2025 and the court below shall proceed to decide the said proceeding with most expedition.

17. Needless to point out that the Court has not adjudicated upon the merits of the case.

18. Accordingly, the application stands disposed of. Order Date :- 11.8.2025 Imtiyaz (Vikas Budhwar, J) IMTIYAZ AHMAD High Court of Judicature at Allahabad