1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.30 OF 2010 WITH CRIMINAL WRIT PETITION NO.31 OF 2010 WITH CRIMINAL WRIT PETITION NO.32 OF 2010 WITH CRIMINAL WRIT PETITION NO.33 OF 2010 WITH CRIMINAL WRIT PETITION NO.34 OF 2010 WITH CRIMINAL WRIT PETITION NO.35 OF 2010 WITH CRIMINAL WRIT PETITION NO.36 OF 2010 WITH CRIMINAL WRIT PETITION NO.37 OF 2010 WITH CRIMINAL WRIT PETITION NO.38 OF 2010 WITH CRIMINAL WRIT PETITION NO.39 OF 2010 WITH CRIMINAL WRIT PETITION NO.40 OF 2010 2 WITH CRIMINAL WRIT PETITION NO.41 OF 2010 WITH CRIMINAL WRIT PETITION NO.42 OF 2010 WITH CRIMINAL WRIT PETITION NO.43 OF 2010 WITH CRIMINAL WRIT PETITION NO.44 OF 2010 WITH CRIMINAL WRIT PETITION NO.45 OF 2010 WITH CRIMINAL WRIT PETITION NO.46 OF 2010 WITH CRIMINAL WRIT PETITION NO.47 OF 2010 WITH CRIMINAL WRIT PETITION NO.48 OF 2010 WITH CRIMINAL WRIT PETITION NO.49 OF 2010 WITH CRIMINAL WRIT PETITION NO.50 OF 2010 WITH CRIMINAL WRIT PETITION NO.51 OF 2010 WITH CRIMINAL WRIT PETITION NO.52 OF 2010 3 WITH CRIMINAL WRIT PETITION NO.53 OF 2010 WITH CRIMINAL WRIT PETITION NO.54 OF 2010 WITH CRIMINAL WRIT PETITION NO.55 OF 2010 WITH CRIMINAL WRIT PETITION NO.56 OF 2010 WITH CRIMINAL WRIT PETITION NO.57 OF 2010 WITH CRIMINAL WRIT PETITION NO.58 OF 2010 WITH CRIMINAL WRIT PETITION NO.59 OF 2010 WITH CRIMINAL WRIT PETITION NO.60 OF 2010 WITH CRIMINAL WRIT PETITION NO.61 OF 2010 WITH CRIMINAL WRIT PETITION NO.62 OF 2010 WITH CRIMINAL WRIT PETITION NO.63 OF 2010 WITH CRIMINAL WRIT PETITION NO.64 OF 2010 4 WITH CRIMINAL WRIT PETITION NO.65 OF 2010 WITH CRIMINAL WRIT PETITION NO.66 OF 2010 WITH CRIMINAL WRIT PETITION NO.67 OF 2010 WITH CRIMINAL WRIT PETITION NO.68 OF 2010 WITH CRIMINAL WRIT PETITION NO.69 OF 2010 WITH CRIMINAL WRIT PETITION NO.70 OF 2010 WITH CRIMINAL WRIT PETITION NO.71 OF 2010 WITH CRIMINAL WRIT PETITION NO.72 OF 2010 WITH CRIMINAL WRIT PETITION NO.73 OF 2010 WITH CRIMINAL WRIT PETITION NO.74 OF 2010 WITH CRIMINAL WRIT PETITION NO.75 OF 2010 WITH CRIMINAL WRIT PETITION NO.76 OF 2010 5 WITH CRIMINAL WRIT PETITION NO.77 OF 2010 WITH CRIMINAL WRIT PETITION NO.78 OF 2010 WITH CRIMINAL WRIT PETITION NO.79 OF 2010 WITH CRIMINAL WRIT PETITION NO.80 OF 2010 WITH CRIMINAL WRIT PETITION NO.81 OF 2010 WITH CRIMINAL WRIT PETITION NO.82 OF 2010 WITH CRIMINAL WRIT PETITION NO.83 OF 2010 WITH CRIMINAL WRIT PETITION NO.84 OF 2010 WITH CRIMINAL WRIT PETITION NO.85 OF 2010 WITH CRIMINAL WRIT PETITION NO.86 OF 2010 WITH CRIMINAL WRIT PETITION NO.87 OF 2010 WITH CRIMINAL WRIT PETITION NO.88 OF 2010 6 WITH CRIMINAL WRIT PETITION NO.89 OF 2010 WITH CRIMINAL WRIT PETITION NO.90 OF 2010 WITH CRIMINAL WRIT PETITION NO.91 OF 2010 WITH CRIMINAL WRIT PETITION NO.92 OF 2010 WITH CRIMINAL WRIT PETITION NO.93 OF 2010 WITH CRIMINAL WRIT PETITION NO.94 OF 2010 WITH CRIMINAL WRIT PETITION NO.95 OF 2010 WITH CRIMINAL WRIT PETITION NO.96 OF 2010 WITH CRIMINAL WRIT PETITION NO.97 OF 2010 WITH CRIMINAL WRIT PETITION NO.98 OF 2010 WITH CRIMINAL WRIT PETITION NO.99 OF 2010 WITH 7 CRIMINAL WRIT PETITION NO.100 OF 2010 WITH CRIMINAL WRIT PETITION NO.101 OF 2010 WITH CRIMINAL WRIT PETITION NO. 102 OF 2010 WITH CRIMINAL WRIT PETITION NO. 103 OF 2010 WITH CRIMINAL WRIT PETITION NO. 104 OF 2010 WITH CRIMINAL WRIT PETITION NO. 105 OF 2010 WITH CRIMINAL WRIT PETITION NO. 106 OF 2010 WITH CRIMINAL WRIT PETITION NO. 107 OF 2010 WITH CRIMINAL WRIT PETITION NO. 108 OF 2010 WITH CRIMINAL WRIT PETITION NO. 109 OF 2010 WITH CRIMINAL WRIT PETITION NO. 110 OF 2010 WITH CRIMINAL WRIT PETITION NO. 111 OF 2010 WITH 8 CRIMINAL WRIT PETITION NO. 112 OF 2010 WITH CRIMINAL WRIT PETITION NO. 113 OF 2010 WITH CRIMINAL WRIT PETITION NO. 114 OF 2010 WITH CRIMINAL WRIT PETITION NO. 115 OF 2010 WITH CRIMINAL WRIT PETITION NO. 116 OF 2010 WITH CRIMINAL WRIT PETITION NO. 117 OF 2010 WITH CRIMINAL WRIT PETITION NO.118 OF 2010 WITH CRIMINAL WRIT PETITION NO.119 OF 2010 WITH CRIMINAL WRIT PETITION NO.120 OF 2010 WITH CRIMINAL WRIT PETITION NO.121 OF 2010 WITH CRIMINAL WRIT PETITION NO.122 OF 2010 WITH CRIMINAL WRIT PETITION NO.123 OF 2010 WITH 9 CRIMINAL WRIT PETITION NO.124 OF 2010 WITH CRIMINAL WRIT PETITION NO.125 OF 2010 WITH CRIMINAL WRIT PETITION NO.126 OF 2010 WITH CRIMINAL WRIT PETITION NO.127 OF 2010 Carona Limited & Ors. ..Petitioners Vs. The State of Maharashtra & Anr. ..Respondents Shri A.H.H.Ponda and Shri S.R. Karnik for Petitioners Shri S.R.Shinde APP for State in Writ Petition No. 30/2010 to 41/2010 Shri A.S.Adate APP for State in Writ Petition No. 42/2010 to 53/2010 Mrs. R.V.Newton APP for State in Writ Petition No.54/2010 to 65/2010 Ms. A.T.Jhaveri APP for State in Writ Petition No.91 to 94/10 & 104 to 111/10 Shri A.P. Pol APP for State in Writ Petition No.112/2010 to 123/2010 Shri D.R. Mane APP for State in Writ Petition No. 75 to 77/2010 and 10 124 to 127/2010 Shri P. S.Bhosale APP for State in Writ Petition No. 69/2010 to70/2010 and 72 to 74/10 and 66 to 68/10 Shri S. V. Gujar APP for State in Writ Petition No. 78/2010 to 90/2010 Ms. Rohini A. Wagh for Respondent No.2 CORAM : S.C.DHARMADHIKARI, J. DATE : 19th January, 2010. P.C. : 1. These Writ Petitions are filed by the Company, Carona Ltd and the other Accused. It is stated that the Complainants-Respondent No.2 in all these Writ Petitions had filed Complaints under Section 138 of the Negotiable Instruments Act, which complaints resulted in conviction of the Accused. Against the order of the conviction and sentence imposed by the Trial Court, the matters were carried in Appeal. An application for bail and for suspending the Judgment and order came to be filed before the Appellate Court. In all these 11 Applications, the Additional Sessions Judge passed a common order whereby he has suspended the execution of the order of conviction and sentence subject to the Applicants (original Appellants) depositing 25% of the compensation amount in the Appellate Court. That is towards part payment of the amount directed to be paid by the order of the Trial Court. 2. The operative order of the Appellate Court reads thus: “(i)Applications are allowed. (ii) Pending the appeals, the execution of order of conviction and sentence passed in C.C.No.210/SS/08 against applicants/appellants is suspended subject to the applicants/appellants, either jointly or severally, depositing 25% of the amount in this Court towards part payment of the amount imposed on them in the impugned order within 8 weeks from the date of this order. (iii) On depositing this 25% amount by applicants/ appellants the same be kept in fixed deposit with any Nationalized Bank 12 from time to time till disposal of the appeal. (iv) Pending the appeals, the applicants/appellants are released on bail on executing PR bond of Rs.2,000/- each and each depositing cash bail, in lieu of surety, Rs.2,000/- before the Trial Court. (v) PR bond and cash bail, if any, as above is furnished by the applicants/appellants, it shall stand continue till the decision of the appeal. (vi) The applicants/appellants are permitted to withdraw the part payment of the fine amount deposited in the Trial Court after complying the above order. (vii) Applications are disposed of. “ 3. Mr. Ponda, Counsel appearing in all these Petitions, submits that there were 90 cases against the Company and the other Accused. In all these cases, the Complainants were the workers / employees of the Company. There was a Voluntary Retirement Scheme (“VRS”) propounded and proposed by the Company and the 13 benefits thereof were the subject matter of the complaints. He further submits that if the cheques have been issued so as to make payment of the dues settled between the parties, then, upon the amount being paid under the scheme, the relationship of employer and employee comes to an end. However, if the amounts are not paid, then, the relationship remains unaffected. The Original Complainants continued as workers of the Company. Therefore, it is not as if the Company has washed off its hands completely. In fact, the Company is sick and a Reference is made to the BIFR. Considering the precarious financial condition of the company, it is the other Accused who have to bring in monies. The total amount directed to be paid by the Trial Court in the complaints filed before it, in which Respondent No.2 are the Complainants comes to about Rs.2,60,00,000/-. If 25% of this amount has to be deposited in the Lower Appellate Court, then, that amounts to taking away the constitutional and statutory right of Appeal. If that right is to be given effect to, then, imposing reasonable condition, while suspending the sentence, was necessary. The 14 condition imposed is unreasonable and, therefore, this Court should interfere and set aside the order. 4. Mr. Ponda has invited my attention to the orders in the complaints as well as in the Appeals and contended that, there is no such thing as “jointly and severally liable” in so far as criminal law is concerned. Therefore, the direction cannot be said to be complied with by the Appellants individually bringing in monies. All cannot be called upon to deposit monies, if condition imposed is satisfied by certain Appellants. Mr. Ponda submits that important issues of law and affecting personal liberty of a person are involved and, therefore, in the light of principles laid down by the Supreme Court in the case of Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. & Anr, reported in (2007) 3 Supreme Court Cases (Cri) 209, this Court should allow the Petitions and set aside the orders. 5. On the other hand, Counsel appearing on behalf of the 2nd 15 Respondent submits that, the complaints have been filed by the workmen who have still not received the entire VRS amount. She submits that the orders passed in civil proceedings and more particularly, while this Court was considering the orders of the Industrial and Labour Courts, are not relevant. The Relationship is not a issue in these cases. Here is the case, where a cheque, which was issued more than 12 years back towards the workers dues, has been dishonoured. The workers were forced to file complaints under Sections 138 and 141 of the said Act. These complaints have been decided and the Complainants have succeeded after a long and hard struggle. The cheque amount has been stipulated and what the Court has ultimately awarded is the sentence commensurate with the offence committed and the same is not at all arbitrary. That apart, the Court has determined the amount of compensation and in one such case, it is Rs.3,00,000/-. The Court has assigned reasons for the same. 6. While suspending the sentence, the Lower Appellate Court has 16 directed to deposit 25% of this amount and the condition cannot be said to be unreasonable, excessive or arbitrary, so as to deprive the Petitioners of their right of appeal. She further submits that the Supreme Court in Dilip Dahanukar’s case (supra) does not hold that any particular percentage should be the criteria. Therefore, the power to suspend sentence must be exercised reasonably. Even conditions can be imposed, but they have to be reasonable. There is no prohibition. In all these matters if the total sum is taken into account, then, the percentage determined cannot be said to be excessive or unreasonable. For all these reasons, this Court should not interfere with the discretion exercised by the Lower Appellate Court and proceed to dismiss the Petitions. 7. I have heard both sides at length. With their assistance, I have perused the Petitions and the Annexures thereto, including the order of the Trial Court and the Lower Appellate Court. 8. The original Appellants filed applications before the Lower 17 Appellate Court for suspension of the sentence. While considering these applications, the Lower Appellate Court adverted to the fact that the offences alleged are bailable. The Accused have been released on bail. They have never misused the bail, but what the Court has observed is that in this case the cheques in question were issued more than a decade ago in favour of the Respondents / Complainants who are the employees of M/s. Carona Ltd. They were awaiting the cheque amount for a long period of time. However, they are required to fight litigation. It is stated that the cheque amount has been used for a long period and, therefore, considering the number of Complainants and the amount involved, the Lower Appellate Court directed to deposit 25% of the amount so that the sentence imposed on the Appellants can be suspended. 9. Both the Trial Court and the Lower Appellate Court have in this case noted the peculiar facts. The Complainants are workmen and now some of them are of advanced age. They were trying to 18 obtain their legal dues ultimately by due process of law. However, a scheme of VRS was proposed and while the same was accepted, it was decided that, the sum thereunder would be paid by cheque within the time stipulated. However, the cheques were dishonoured by the banks on presentation. Considering that the employees agreed to settle their dues and dispute by accepting a lesser amount and forgoing their employment, the concerned Complainants / Respondents have been deprived of all these sums on dishonour of the cheques. They have already been dragged into litigation before various Forums. It is in such circumstances and noting that the offences have been committed, the Trial Court, after conviction and sentence, directed that the compensation to the tune of Rs.3,00,000/- should be paid. 10.It is against this conviction and sentence that the Appeals have been preferred. When the Appeals have been preferred and they were pending, only the request for suspension for sentence has been made to the Lower Appellate Court. The Lower Appellate 19 Court while determining the percentage of 25%, has taken into account the aforementioned factors. It has also taken due note of the fact that the Company is passing through a difficult phase. It has also noted the arguments of the Appellants. Their statutory and constitutional rights have not been put in jeopardy. In my view, the overall figure of Rs.2.60 Crores involved in total 90 complaints, that the Lower Appellate Court determined 25% to be a just, fair and reasonable amount. To my mind, the Lower Appellate Court has not deviated from the principles in Dilip Dahanukar’s case (supra). In fact, while duly noting them and applying the same to the peculiar facts of this case, that the Lower Appellate Court has imposed the condition. The Lower Appellate Court has observed that on one side there are businessmen, whereas on the other side there are workmen / employees, awaiting their legal dues. The cheques were given in due repayment thereof and that is how the condition is imposed. In this peculiar fact, it cannot be held that this course adopted would be completely jeopardizing the Appellants’ right of Appeal. 20 The order passed is fair and reasonable and the same does not require any interference in writ jurisdiction. 11.The submissions that the amount has been directed to be paid jointly and severally and, therefore, the order suffers from a patent illegality, need not detain me. It is clear from the order itself that, the Learned Appellate Judge adverted to the complaints and individual Appeals. The Appellants before the Lower Appellate Court who applied for suspension of sentence, were individuals and the Company. In such circumstances, it cannot be stated that the Lower Appellate Court was unaware of the distinction in law as between the individual and a corporate entity. Therefore, the direction to deposit must be construed as being in accordance with law, irrespective of the words “jointly and severally”. All that this means is deposit by all may not be necessary. Any of the Appellants / Accused can bring in the amount quantified and that would amount to all of them complying with the condition imposed. Deposit by some would suffice. Nothing more be read in 21 the usage of the words “jointly and severally” in these peculiar facts. Any larger question need not be considered. Even otherwise, that is an error which does not vitiate the entire order by appropriate clarification that can be taken care of. 12.As far as the questions of law as framed in all the cases are concerned, they can be considered in an appropriate case. In this case and in the peculiar facts thereof, I do not think that interference in equitable and discretion jurisdiction of this Court is necessary. Each of the Petition stands dismissed. It is stated that the Petitioners have deposited a sum of Rs.13,65,000/- in the Trial Court. Since the order is directing payment jointly and severally, all the Petitioners who must get the benefit of this deposit and this sum may be adjusted and the balance amount of deposit to the extent of 25% will be made good. But for the said purpose, some more time is prayed. The Petitioners requested for 8 weeks’ time to do so. 22 13.The Complainants’ Counsel opposes the request and states that the Trial Court’s order is dated 04.09.2009 and the Lower Appellate Court’s order is of 05.10.2009. Three extensions have already been granted and, therefore, this request should not be granted. This Court may clarify with regard to the adjustment and the Complainants would have no objection in that behalf. 14.To my mind, there is some substance in the grievance of the Complainants that further time to deposit the amount should not be granted. However, taking overall view of the matter and since some time has already been granted, the interest of justice would be served, if the balance/deficit amount is deposited within a period of 6 weeks from today. I have used the words “deficit balance” only to take care of Mr. Ponda’s apprehension that, due credit will not be given for a sum of Rs.13,65.000/- already deposited. That credit and adjustment may be duly given. However, the wording of the orders of the Trial Court and the Lower Appellate Court, should not deprive the Appellants from the 23 benefit of the deposit and it is directed without prejudice to their inter se rights and objections, the deposit would enure for the benefit of all the Appellants. All these observations are made for the purpose of deciding the application for suspension of sentence and should be treated as restricted to the same. 15.This Court has not expressed any point on merits of the controversy and, therefore, the Appeals must be decided uninfluenced by the present observations. 16.Petitions dismissed subject to above. (S.C.DHARMADHIKARI, J)