SCR.A/1848/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1848 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PITAMBAR BHAVANBHAI AND SONS A PARTNERSHIP FIRM & 2 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR SANDEEP N BHATT for Applicant(s) : 1 - 3. MR MAULIK NANAVATI ADDL.PUBLIC PROSECUTOR for Respondent(s) : 1, MR JM BUDHBHATTI for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 29/09/2008 ORAL JUDGMENT 1. Present petition is filed by the petitioners – original accused for appropriate writ, order and/or direction, quashing and setting aside the order passed below SCR.A/1848/2008 2/6 JUDGMENT application Ex.6 in Criminal Appeal No.29 of 2007 in so far as imposing condition No.2 is concerned, while releasing the petitioners on bail by the learned Sessions Judge, Rajkot vide order dtd.18/6/2008 . 2. It appears that being aggrieved by and dissatisfied with the judgement and order of conviction dtd.14/8/2007 passed by the learned 9th Additional Senior Civil Judge and Judicial Magistrate (First Class) in Criminal Case No.8615 of 2002, convicting the petitioners for the offences punishable under sec.138 of Negotiable Instruments Act, the petitioners have preferred Criminal Appeal No.29 of 2007 before the learned Sessions Judge, Rajkot and in the said appeal, they also prayed for releasing them on bail during the pendency of the appeal and while releasing the petitioners on bail, the learned Sessions Judge, Rajkot has imposed condition directing the petitioners to deposit 15% amount of the cheque amount. Being aggrieved by and dissatisfied with the condition No.2 of the order dtd.18/6/2008 imposed while releasing the petitioners on bail, directing the petitioners to deposit 15% of the cheque amount, the petitioners have preferred the present Special Criminal Application under Article 227 of the Constitution of India. SCR.A/1848/2008 3/6 JUDGMENT 3. Mr.Sandip Bhatt, learned advocate appearing on behalf of the petitioners – original accused has vehemently submitted that condition No.2 imposed by the learned Sessions Judge, Rajkot directing the petitioners to deposit 15% of the cheque amount, while releasing the petitioners on bail during the pendency of the Criminal Appeal, is absolutely illegal and arbitrary. It is further submitted that as such while convicting the petitioners, the learned trial court has not ordered for compensation and whatever the order passed by the learned trial court is to deposit penalty/fine of Rs.12,000, which the petitioners have already deposited, and therefore, while releasing the petitioners on bail during the penedency of the appeal, the learned appellate court ought not to have directed the petitioners to further deposit 15% of the cheque amount, more particularly when there is no further order passed by the trial court awarding compensation. Submitting accordingly it is requested to quash and set aside the condition No.2 imposed by the learned Sessions Judge, Rajkot while releasing the petitioners on bail during the pendency of the Criminal vide order dtd.18/6/2008. 4. The petition is vehemently opposed by Mr.J.M. SCR.A/1848/2008 4/6 JUDGMENT Budhbhatti, learned advocate appearing on behalf of the respondent No.2 by submitting that when the learned Sessions Judge has exercised the discretion and imposed the condition while releasing the petitioners on bail, the same is not required to be interfered with by this Hon'ble Court in exercise of the powers under sec.482 of the Code of Criminal Procedure. Submitting accordingly it is requested to dismiss the present petition. 5. Mr.Maulik Nanavati, learned advocate appearing on behalf of the respondent No.1 – State has requested to pass appropriate order. 6. Heard the learned advocate appearing on behalf of the respective parties. 7. At the outset, it is required to be noted that the trial court vide judgement and order dtd.14/8/2007, held the petitioners guilty for the offences punishable under sec.138 of the Negotiable Instruments Act and has imposed sentence of Simple Imprisonment for a period of 10 months and also directed the petitioners to deposit fine of Rs.4000 each i.e. Rs.12,000 and the petitioners have deposited the said amount of fine of Rs.12,000. Being aggrieved by and dissatisfied with the aforesaid judgement and order of conviction, the petitioners have SCR.A/1848/2008 5/6 JUDGMENT preferred Criminal Appeal No.29 of 2007 before the learned Sessions Judge, Rajkot and in the said appeal, they also prayed for releasing them on bail during the pendency of the appeal and while releasing the petitioners on bail during the pendency of the appeal, the learned Sessions Judge has imposed condition No.2 directing the petitioners to deposit 15% of the cheque amount within 3 months. While convicting the petitioners for the offences under sec.138 of Negotiable Instruments Act, no further order of compensation is passed by the learned trial court awarding compensation and the petitioners have deposited the amount of fine as directed by the trial court and therefore, no further order could have been passed by the learned Sessions Judge, directing the petitioners to deposit 15% of the cheque amount while releasing the petitioners on bail. When the petitioners have deposited the amount of fine as per the order of the trial court, and when no further order of compensation is passed by the trial court, the condition No.2 cannot be sustained and the same deserves to be quashed and set aside. 8. For the reasons stated above, the petition succeeds. Condition No.2 imposed by the learned Sessions Judge, SCR.A/1848/2008 6/6 JUDGMENT Rajkot in order dtd.18/6/2008 passed below application Ex.6 in Criminal Appeal No.29 of 2007, while releasing the petitioners on bail, is hereby quashed and set aside. Rule is made absolute accordingly. Direct Service is permitted. [M.R. SHAH, J.] rafik