1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Ram Chandra Khati Vs. State of Rajasthan & Anr. S.B.CR. IIND MISC. PETITION NO.279/2008 ... Date of Order: March 27, 2008 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr.D.L.Mothsra, for the petitioner. Mr.N. Moolchandani, Public Prosecutor for the State. Mr.Dron Kaushik, for respondent No.2. BY THE COURT: Heard learned counsel for the parties. Carefully gone through the order impugned dated 28.7.2007 passed by Sessions Judge, Hanumangarh (for short, “the Appellate Court” hereinafter) in Criminal Appeal No.89/2006. It is contended by the learned counsel for the petitioner that the petitioner was convicted, vide judgment and order dated 2 24.4.2006 passed by the Chief Judicial Magistrate, Hanumangarh (for short, “the trial Court” hereinafter), for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short `the Act' hereinafter) and sentenced to undergo one year's rigorous imprisonment and a fine of Rs.2,50,000/-. The petitioner preferred an appeal and the Appellate Court, vide order dated 20.5.2006, on an application filed by the petitioner under Section 389 of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter), suspended the sentence awarded to the petitioner by the trial Court. However, by a subsequent order, i.e. impugned order dated 28.7.2007, the Appellate Court directed the petitioner to deposit a sum of Rs.10,500/- firstly on 29.8.2007 before the Appellate Court and thereafter on 29th of every month for twenty months, if the appeal is not decided and on such deposit, the sentence would remain suspended. Learned counsel for the petitioner submits that the subsequent impugned order dated 28.7.2007 passed by the Appellate Court is erroneous to the extent that firstly there is no amount of of Rs.10,500/- imposed as the fine and even otherwise, when the sentence has been suspended vide order dated 20.5.2006 then there was no occasion of the Appellate Court to direct the petitioner to deposit a sum of Rs.10,500/-. 3 Upon hearing the learned counsel for the parties, in my view, it appears that there are numerous appeals pending before the Sessions Judge, Hanumangarh and in most of the cases, counsel for the appellants do not argue the appeal which gives rise to pendency of the case and, therefore, the Appellate Court modified the order dated 20.5.2006 by the impugned order dated 28.7.2007. Learned counsel for the petitioner submits that on the next date fixed before the Appellate Court, counsel for the petitioner- appellant, without seeking any adjournment, would argue the appeal. In view of the statement of the counsel for the petitioner, the impugned order of the Appellate Court dated 28.7.2007 imposing the condition of depositing Rs.10,500/- on the petitioner, deserves to be set aside. Accordingly, the impugned order dated 28.7.2007 passed by the Appellate Court is set aside. If the counsel representing the petitioner before the Appellate Court fails to argue the appeal, it will be open for the Appellate Court to decide the appeal itself after examining the record on merit even if the counsel for the appellant-petitioner fails to argue the appeal. 4 The criminal miscellaneous petition is allowed to the extent above. [H.R. PANWAR], J. m.asif/- 5 S.B. Criminal Misc. Stay Petition No.466/2008 In S.B. Criminal Misc. Petition No.279/2008 (Ram Chandra Khati Vs. State of Rajasthan & Anr.) Date of Order: March 27, 2008 HON'BLE MR. H.R. PANWAR, J. Mr.D.L.Mothsra, for the petitioner. Mr.N. Moolchandani, Public Prosecutor for the State. Mr.Dron Kaushik, for respondent No.2. Since the main petition itself has been allowed, the stay petition stands disposed of. (H.R. PANWAR), J. m.asif/-