Jung Bahadur Singh v. State of U.P. and others' to extent the

1. Heard learned counsel for the petitioner as well as learned A.G.A. for the State and perused the record.

2. The instant petition under Article 226 of the Constitution of India has been filed by the petitioner, namely, Jang Bahadur Singh with the following prayers:- "(1) Issue order or direction for quashing impugned order dated 23.11.2024 passed by the Court of Hon'ble Sessions Judge, Sultanpur in Criminal Appeal No. 72 of 2024, 'Jung Bahadur Singh vs. State of U.P. and others' to extent the petitioner is being directed to deposit more than 20% of the total award of fine i.e. Rs. 9,33,750/- (Rupees three lakh) of total award fine of Rs. 18,67,500/- with in one week while granting bail on one hand and on other hand to issue a notice to the opposite party, thereafter taking it away by the other hand by imposing such a harsh condition for bail, that too in an appeal which is continuance of trial itself. (2) Any other order................in favour of the petitioner."

3. Learned counsel for the petitioner while relying on the law laid down by the Hon'ble Supreme Court in 'Muskan Enterprises & another vs. The State of Punjab and another' decided on 19.12.2024 in Criminal Appeal No. 5491 of 2024 [arising out of SLP (Crl.)] No. 8072 of 2024, that the appellate court while passing the impugned order whereby the accused/appellant has been directed to deposit 50% of the fine imposed by the trial court within seven days has not considered the aforesaid law and other legal principles and has passed the order in a routine manner.

4. It is further submitted that it was the duty of the appellate court to have considered the direction of depositing Rs. 50% of the fine might not be passed in a routine manner and it was the incumbent duty of the appellate court to have gone into the facts and circumstances of the case in order to assess as to what should be the quantum of the amount which would be required to be deposited by the appellant.

5. It is also submitted that an application given for the extension of time has also been rejected by the appellate court. It is vehemently submitted that the appellant would not be in a position to deposit 50% of the amount so imposed by the trial court and, therefore, the same be reduced to the 20%.

6. Learned A.G.A. on the other hand submits that there is no illegality in the order passed by the appellate court, as under Section 148 of the N.I. Act set a minimum limit below which an order for deposition of fine may not be passed by the appellate court and, therefore, no illegality in the impugned judgment and order.

7. Having heard learned counsel for the parties and having perused the record, it is reflected that the appellant/accused there convicted by the trial court i.e. Additional Chief Judicial Magistrate, Court No. 17, Sultanpur, vide order dated 25.10.2024 in Criminal Case No. 1609 of 2023/2285 of 2012, under Section 138 of the Negotiable Instrument Act, Police Station Dhammaur, District Sultanpur and after being convicted for committing offence under Section 138 of the N.I.Act, he was sentenced for one year simple imprisonment and to deposit fine of Rs. 18,67,500/- within the time stipulated therein with consequential directions.

8. The grievance of the petitioner appears to be that, it was a case where the appellate court should not have directed deposition of fine more than 20%. In this regard, learned counsel for the petitioner has relied on the law laid down by the Hon'ble Supreme Court in Muskan Enterprises and another vs. State of Punjab (supra).

9. I have perused the record and law which was relied on by learned counsel for the petitioner and find that in Muskan Enterprises and another vs. State of Punjab (supra) the Hon'ble Supreme Court has only clarified that in a rarest of rare case the appellate court may order deposition of below 20 percent fine or no fine at all and it depends on the facts and circumstance of each case and on the discretion of the appellate court which is bound to be exercised judicially.

10. When controverted as to whether why the first appellate court should have directed deposition of fine not more than 20 percent, various submissions have been raised by learned counsel for the petitioner including that the complainant has not appeared as a witness before the trial court.

11. The record would reveal that the cheque in question was alleged to have been issued in 2012. The impugned order has been passed in the year 2024 i.e. after the institution of the complaint. The trial court has considered the specific submissions raised before it with regard to the fact that the cheque in question was stolen and has decided the same against the appellant/accused. This Court is of the considered opinion that while exercising its discretion as enshrined under Section 148 of the N.I. Act, the incumbent duty of the appellate court is to go through the facts and circumstances of each case by the accused/appellant and no straight-jacket formula for the same could be formulated, as each criminal case is having its own blend favour and factual matrix.

12. Having gone through the impugned judgment only for the purpose of assessing as to whether the appellate court has committed any illegality in directing the appellant to deposit 50 percent of the find so imposed by the trial court, I find that no such illegality or glaring mistake is appearing in the impugned order whereby the appellant/accused has been directed to deposit 50% of the fine so imposed by the trial court, moreso when the trial has taken about 12 long years. So far as the providing of time is concerned for deposition of such amount of 50 percent, it will emerge that the impugned order has been passed on 23.11.2024 whereby seven days' time was granted for deposition of fine to the tune of 50 percent. The time extension application was moved on 02.12.2024 i.e. after about nine days which has been dismissed on 07.12.2024 itself and today is 23rd January, 2025. Thus, about two months have elapsed since passing of the impugned order and the time which was sought by the appellant by moving an application for time extension has also appears to have expired.

13. Thus, having regard to all the facts and circumstances of the case, I do not find any good ground on the basis of which the order passed by the appellate court be interfered. In result, the instant petition preferred by the petitioner is, hereby, dismissed.

14. It is clarified that this Court has not opined anything on the merits of the case and whatever observations have been made herein-before, are only for the disposal of the instant petition.

15. Keeping in view the fact that the petition is being disposed of at the stage of admission, the necessity of issuing notice to the complainant/respondent no.2 is hereby also dispensed with. Order Date :- 23.1.2025/Praveen PRAVEEN KUMAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for the petitioner as well as learned A.G.A. for the State and perused the record.

2. The instant petition under Article 226 of the Constitution of India has been filed by the petitioner, namely, Jang Bahadur Singh with the following prayers:- "(1) Issue order or direction for quashing impugned order dated 23.11.2024 passed by the Court of Hon'ble Sessions Judge, Sultanpur in Criminal Appeal No. 72 of 2024, 'Jung Bahadur Singh vs. State of U.P. and others' to extent the petitioner is being directed to deposit more than 20% of the total award of fine i.e. Rs. 9,33,750/- (Rupees three lakh) of total award fine of Rs. 18,67,500/- with in one week while granting bail on one hand and on other hand to issue a notice to the opposite party, thereafter taking it away by the other hand by imposing such a harsh condition for bail, that too in an appeal which is continuance of trial itself. (2) Any other order................in favour of the petitioner."

3. Learned counsel for the petitioner while relying on the law laid down by the Hon'ble Supreme Court in 'Muskan Enterprises & another vs. The State of Punjab and another' decided on 19.12.2024 in Criminal Appeal No. 5491 of 2024 [arising out of SLP (Crl.)] No. 8072 of 2024, that the appellate court while passing the impugned order whereby the accused/appellant has been directed to deposit 50% of the fine imposed by the trial court within seven days has not considered the aforesaid law and other legal principles and has passed the order in a routine manner.

4. It is further submitted that it was the duty of the appellate court to have considered the direction of depositing Rs. 50% of the fine might not be passed in a routine manner and it was the incumbent duty of the appellate court to have gone into the facts and circumstances of the case in order to assess as to what should be the quantum of the amount which would be required to be deposited by the appellant.

5. It is also submitted that an application given for the extension of time has also been rejected by the appellate court. It is vehemently submitted that the appellant would not be in a position to deposit 50% of the amount so imposed by the trial court and, therefore, the same be reduced to the 20%.

6. Learned A.G.A. on the other hand submits that there is no illegality in the order passed by the appellate court, as under Section 148 of the N.I. Act set a minimum limit below which an order for deposition of fine may not be passed by the appellate court and, therefore, no illegality in the impugned judgment and order.

7. Having heard learned counsel for the parties and having perused the record, it is reflected that the appellant/accused there convicted by the trial court i.e. Additional Chief Judicial Magistrate, Court No. 17, Sultanpur, vide order dated 25.10.2024 in Criminal Case No. 1609 of 2023/2285 of 2012, under Section 138 of the Negotiable Instrument Act, Police Station Dhammaur, District Sultanpur and after being convicted for committing offence under Section 138 of the N.I.Act, he was sentenced for one year simple imprisonment and to deposit fine of Rs. 18,67,500/- within the time stipulated therein with consequential directions.

8. The grievance of the petitioner appears to be that, it was a case where the appellate court should not have directed deposition of fine more than 20%. In this regard, learned counsel for the petitioner has relied on the law laid down by the Hon'ble Supreme Court in Muskan Enterprises and another vs. State of Punjab (supra).

9. I have perused the record and law which was relied on by learned counsel for the petitioner and find that in Muskan Enterprises and another vs. State of Punjab (supra) the Hon'ble Supreme Court has only clarified that in a rarest of rare case the appellate court may order deposition of below 20 percent fine or no fine at all and it depends on the facts and circumstance of each case and on the discretion of the appellate court which is bound to be exercised judicially.

10. When controverted as to whether why the first appellate court should have directed deposition of fine not more than 20 percent, various submissions have been raised by learned counsel for the petitioner including that the complainant has not appeared as a witness before the trial court.

11. The record would reveal that the cheque in question was alleged to have been issued in 2012. The impugned order has been passed in the year 2024 i.e. after the institution of the complaint. The trial court has considered the specific submissions raised before it with regard to the fact that the cheque in question was stolen and has decided the same against the appellant/accused. This Court is of the considered opinion that while exercising its discretion as enshrined under Section 148 of the N.I. Act, the incumbent duty of the appellate court is to go through the facts and circumstances of each case by the accused/appellant and no straight-jacket formula for the same could be formulated, as each criminal case is having its own blend favour and factual matrix.

12. Having gone through the impugned judgment only for the purpose of assessing as to whether the appellate court has committed any illegality in directing the appellant to deposit 50 percent of the find so imposed by the trial court, I find that no such illegality or glaring mistake is appearing in the impugned order whereby the appellant/accused has been directed to deposit 50% of the fine so imposed by the trial court, moreso when the trial has taken about 12 long years. So far as the providing of time is concerned for deposition of such amount of 50 percent, it will emerge that the impugned order has been passed on 23.11.2024 whereby seven days' time was granted for deposition of fine to the tune of 50 percent. The time extension application was moved on 02.12.2024 i.e. after about nine days which has been dismissed on 07.12.2024 itself and today is 23rd January, 2025. Thus, about two months have elapsed since passing of the impugned order and the time which was sought by the appellant by moving an application for time extension has also appears to have expired.

13. Thus, having regard to all the facts and circumstances of the case, I do not find any good ground on the basis of which the order passed by the appellate court be interfered. In result, the instant petition preferred by the petitioner is, hereby, dismissed.

14. It is clarified that this Court has not opined anything on the merits of the case and whatever observations have been made herein-before, are only for the disposal of the instant petition.

15. Keeping in view the fact that the petition is being disposed of at the stage of admission, the necessity of issuing notice to the complainant/respondent no.2 is hereby also dispensed with. Order Date :- 23.1.2025/Praveen PRAVEEN KUMAR High Court of Judicature at Allahabad, Lucknow Bench