Court No. - 68
Case :- APPLICATION U/S 482 No. - 28353 of 2019 Applicant :- Saurabh Gautam Opposite Party :- State Of Up And Another Counsel for Applicant :- Ali Hasan Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record.
The present application under Section 482 Cr.P.C. has been filed by the applicant for quashing the order dated 01.07.2019 passed by learned Sessions Judge, Agra in Criminal Appeal No. 184 of 2019 to the extent so far as it relates to the direction to deposit half of the amount of the fine imposed by learned Additional Court No. 1, Agra vide judgement and order dated 03.06.2019 passed in complaint case no. 3529 of 2017, under Section 138 of Negotiable Instruments Act, 1881, police station Hari Parwat, district Agra.
The contention of the counsel for the applicant is that the impugned order dated 01.07.2019 so far as it relates to the direction to deposit half of the amount of fine is illegal and against the provisions of law. It was stated that as per provisions of Section 357(2) of Cr.P.C., if the fine is imposed in a case, which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal and thus, in view of the provisions of Section 357(2) of Cr.P.C., the direction in impugned order to deposit half of the fine is illegal and against the provisions of law. Learned counsel for the applicant has relied upon the case of Rajesh Kumar vs. State of U.P And Another passed by this Court in 482 Cr.P.C. Application No. 10459 of 2017 decided on 18.04.2017, copy of which has been annexed as annexure no. 9 to the application.
Learned A.G.A. has opposed the application and submitted that there is no illegality or impropriety in the impugned order.
Perusal of the record shows that the applicant Shaurabh Gautam was convicted under Section 138 of Negotiable instruments Act, 1881 vide judgement and order dated 03.06.2019 passed by the Presiding Officer of Additional Court No. 1, Agra. He was sentenced to one year imprisonment and fine of Rs. 11,70,000/-. The applicant has presented an appeal against that judgement and order before the Court of Sessions Judge, Agra. Learned Sessions Judge, Agra admitted the appeal for hearing vide impugned order, however, granted bail to the applicant (appellant before the Session Court) subject to depositing half of the amount of fine, imposed by the learned trial court. Being aggrieved by the said direction of the learned Lower Appellate Court, by which applicant has been directed to deposit half of the amount of fine, he has filed the present application under Section 482 Cr.P.C. before this Court.
It is apparent from the provisions of the Negotiable Instruments (Amendment) Act, 2018, No. 20 of 2018 that by way of this amendment, Section 148 has been added in the Negotiable Instruments Act, 1881. The provisions of Section 148 (1) of the Act reads as under:-
"148. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent. of the fine or compensation awarded by the trial Court:
Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143A."
It is apparent from the above-stated provisions that the learned Lower Appellate Court may order the applicant to deposit such sum, which shall be a minimum of twenty percent of the fine or compensation awarded by the learned trial court. Here, it would be pertinent to mention that the above-stated case law, relied upon by learned counsel for the applicant, was pronounced in the year 2017, while the above-stated amended provisions have been made applicable in the year 2018. Thus, on the issue involved in the present matter, the above-stated case law does not help the applicant. However, keeping in view the facts of the matter, it would be appropriate that the direction of learned Lower Appellate Court to deposit fifty percent amount of fine be reduced to twenty percent amount of fine imposed by the learned trial court.
Accordingly, the direction of learned Lower Appellate Court to deposit fifty percent amount of fine is altered and the applicant shall be released on bail subject to depositing twenty percent of the total amount of fine imposed by the trial Court subject to other conditions imposed by learned Lower Appellate Court.
With the aforesaid direction/observation, the instant application is finally disposed of.
Order Date :- 25.7.2019 Anand