1. RULE. Shri L.B. Dabhi, learned APP waives service of notice of rule on behalf of respondent no. 1 and Shri Rakesh Sharma, learned advocate waives service of notice of rule on behalf of respondent no. 2-original complainant.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present application is taken up for final hearing today.
3. The present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure has been preferred by the applicant-original accused to quash and set aside the impugned order dated 11/08/2011 passed by the learned Principal Session Judge, Mehsana below Exh. 5 in Criminal Appeal No. 85/2011 so far as while releasing the applicant on bail during pendency of the appeal the applicant is directed to deposit 25% of the amount of compensation (condition no. 4 of the said order).
4. It appears that being aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned Additional Chief Judicial Magistrate, Mehsana dated 02/07/2011 in Criminal Case No. 9287/2008 convicting the applicant for the offence under Section 138 of the Negotiable Instruments Act and directing the applicant to undergo the sentence of one year S.I. with a fine of Rs. 10,000/- failing which to undergo further three months S.I., the applicant has preferred Criminal Appeal No. 85/2011 before the learned Sessions Court, Mehsana. In the said appeal, the applicant submitted an application, Exh. 5 to suspend the sentence and to release him on bail and by impugned order, the learned Principal Sessions Judge, Mehsana has as such allowed the said application suspending the sentence imposed by the learned trial Court till final disposal of the appeal on furnishing personal bond of Rs. 5,000/- with security of the like amount by the applicant on following conditions;
(i) He shall remain present before this Court on every adjournment.
(ii) He shall not change his residence without prior permission of this Court.
(iii) He shall not leave the territorial limit of Gujarat State without prior permission of this Court.
(iv) He shall deposit 25% of amount of compensation, within one month failing which the bail bond shall automatically stand to be cancelled.
4.1. Being aggrieved and dissatisfied with condition no. 4 of the impugned order dated 11/08/2011 passed by the learned Principal Sessions Judge, Mehsana below Exh. 5 in Criminal Appeal No. 85/2011 the applicant has preferred the present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure.
5. Shri Mahesh Bhavsar, learned advocate appearing on behalf of the applicant-original accused has vehemently submitted that as such the learned trial Court while passing the order of conviction had not passed any order for compensation and/or has not awarded any compensation and, therefore, there is no question of any deposit of 25% of the amount of compensation as ordered by the learned appellate Court while suspending the sentence. It is submitted that as such the learned Principal Sessions Judge, Mehsana has passed an order mechanically, without applying the mind and without perusing the order passed by the learned trial Court and without considering whether any amount of compensation has been awarded by the learned trial Court or not. It is further submitted that as such the learned appellate Court has passed an order in a cyclostyle form and, therefore, it is requested to allow the present Criminal Revision Application and to quash and set aside condition no. 4 of the order passed by the learned appellate Court below Exh. 5 dated 11/08/2011 in Criminal Appeal No. 85/2011.
6. Shri Rakesh Sharma, learned advocate appearing on behalf of respondent no. 2-original complainant has fairly conceded that as such the learned trial Court while convicting the applicant has not passed any order awarding compensation and, therefore, as such there is no question of deposit of any amount of compensation by the applicant, much less 25% of the award of compensation as directed by the learned appellate Court, while suspending the sentence during pendency of the appeal. It appears that as the order suspending the sentence passed by the learned Principal Sessions Judge, Mehsana is in a cyclostyle form, the mistake might have been committed by the learned Sessions Judge and, therefore, it is requested to pass an appropriate order.
7. Shri L.B. Dabhi, learned APP appearing on behalf of respondent no. 1-State has requested to pass an appropriate order considering the facts and circumstances of the case.
8. Heard the learned advocates appearing on behalf of the respective parties and considered the impugned order passed by the learned Principal Sessions Judge, Mehsana while suspending the sentence and releasing the applicant on bail as well as the judgment and order of conviction and sentence passed by the learned trial Court convicting the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act. At the outset, it is required to be noted that as such the learned trial Court has not passed any order of compensation while convicting the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act and while imposing sentence upon the applicant, only a fine of Rs. 10,000/- has been imposed upon the applicant. Under the circumstances, when the learned trial Court has not passed any order of compensation there was no question of deposit of any amount towards compensation. Under the circumstances, as such the learned Principal Sessions Judge, Mehsana has materially erred in imposing condition no. 4 while releasing the applicant on bail and/or suspending the sentence for which he has been convicted i.e. directing the applicant to deposit 25% of the amount of compensation. It appears that the learned Principal Sessions Judge, Mehsana has not considered and/or gone through the order passed by the learned trial Court and has mechanically imposed the condition of directing the applicant to deposit 25% of compensation while releasing the applicant on bail and/or while suspending the sentence. Considering the impugned order, it appears that the same is a cyclostyled order and only certain blanks are filled in and, therefore, by mistake and/or through oversight and/or in a mechanical manner, condition no. 4 has been imposed, which cannot be sustained.
9. Under the circumstances and for the reasons stated hereinabove, the present Criminal Revision Application succeeds. Condition no. 4 imposed by the learned appellate Court while passing the order below Exh. 5 dated 11/08/2011 in Criminal Appeal No. 85/2011 is hereby quashed and set aside. Rule is made absolute accordingly. In the facts and circumstances of the case, the learned appellate Court is directed to expedite the hearing of the appeal.
10. Registry is directed to send the writ of this order to the learned Principal Sessions Judge, Mehsana immediately.
(M.R. SHAH, J.) siji