1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 990 of 2010 Mr. Sudhir Shridhar Joshi .. Applicant Versus Girish Harishchandra Agarwal & Another ...Respondents Mr. Sudhir Hardikar for Applicant . Mrs.P.H.Kantharia for the State. CORAM:- R.Y.GANOO, J. DATED:- 8th JULY, 2011. P.C. 1. The petitioner faced trial under Section 138 of the Negotiable Instruments Act, 1881, in the Court of learned Judicial Magistrate, I Class, 10th Court, Pune in S.C.C. No. 20466 of 2006. The said court at the end of the trial delivered judgment on 24th December, 2009 and convicted the petitioner under Section 138 of the Negotiable Instruments Act. The petitioner was ordered to suffer simple imprisonment for six months. He was also directed to pay fine Rs. 2 50,000/-. It was also ordered that if he pays the amount of Rs. 50,000/- it be paid to the complainant as compensation. The petitioner was aggrieved by this order and that is how he filed Criminal Appeal No.33 of 2010 in the Court of the learned Addl. Sessions Judge, Pune ( Mr. V. M. Jahagirdar). In the said appeal, petitioner filed application below Exhibit 5 praying for suspension of the sentence imposed upon him by judgment and order dated 24th December 2009. The learned Addl. Sessions Judge, Pune passed the following order: “ Perused the applications. Heard Advocate for the appellant/accused. The execution of sentence and order passed by the 10th Joint Judicial Magistrate, First Class, A.C. (Link) Court, Pune in R.C.C. No. 20466/2006 dated 24.12.2006, is hereby suspended till disposal of the appeal, on depositing the amount of Rs. 3,00,000/- (Rupees Three Lacs Only). The appellant/accused be released on his furnishing P.R. Of Rs.10,000/- and S.B. Of like amount, failing which remanded to M.C.R.” 2. Petitioner has filed this petition so as to challenge this order. 3 3. Looking to the nature of the point, it was held that the petition can be disposed of immediately. Hence Rule. 4. Rule made returnable forthwith. 5. Learned Advocate on behalf of the respondent waives service. Petition is taken up for hearing. 6. Learned Advocate Mr. Hardikar, appearing on behalf of the petitioner submitted that the fine amount payable as per the order dated 24th December, 2009 was Rs.50,000/- only, and that as a part of condition to stay the suspension of the sentence, the learned Addl. Sessions Judge, Pune could have at the most directed the petitioner to deposit Rs.50,000/- and certainly not more than Rs.50,000/-. He submitted that calling upon the petitioner to deposit the sum of Rs.3 lakhs was not proper and that it was illegal. He submitted that the impugned order passed deserves consideration at the hands of this Court. 7. Learned Counsel Mr. Pawar appearing on behalf of the respondent no.1 tried to justify this order by contending that in the case in which 4 the petitioner was convicted, in all three cheques were involved and the sum total of those three cheques was Rs.8,70,000/-. Learned Counsel Mr. Pawar submitted that the leaned Addl. Sessions Judge has noted this fact that the sum total of all cheques was Rs.8.70,000/- and that is how he has directed the petitioner to pay sum of Rs.3 lakhs and that the impugned order need not be interfered with. 8. Having considered the point involved, I am inclined to set aside this order for the following reasons. 9. Since the petitioner has been convicted under Section 138 of the Negotiable Instruments Act, 1881 and has been ordered to pay fine of Rs.50,000/-. The learned Addl. Sessions Judge could not have asked the petitioner to deposit in the court, an amount more than the fine amount. In fact, the Order dated 29th January, 2010 which is the subject matter of this petition is without giving any reason whatsoever. The learned Addl. Sessions Judge should have given some reason as to why he is asking the petitioner to deposit Rs. 3,00,000/- when the fine amount was Rs.50,000/- only. The submission advanced by learned Counsel Mr. Pawar is not proper. 5 The Order dated 29th January, 2010 calling upon the petitioner to deposit Rs.3,00,000/- is certainly bad in law and is required to be quashed and set aside. 10.The next question is, now, on what terms the petitioner can be granted relief on the application below Exhibit 5. Learned Counsel Mr. Hardikar, across the bar stated that in the course of earlier hearing this court had asked him to deposit the sum of Rs.25,000/- to secure suspension of sentence. Since the statement is made across the bar, I am prepared to accept it. Learned Counsel Mr. Hardikar stated that pursuant to the said oral order he has deposited Rs. 25,000/- with the Court of Addl. Sessions Judge, Pune. 11.Looking to the fact that the fine amount was Rs.50,000/-, I am inclined to concur with the oral order passed in this petition by my learned Predecessor and I hold that the petitioner can be directed to deposit in the court the sum of Rs.25,000/-. In view of this, Order dated 29th January, 2010 passed by the learned Addl. Sessions Judge, Pune is required to be set aside by passing the following order. 6 ORDER Petition stands disposed of on following terms. i) Upon petitioner depositing the sum of Rs.25,000/-, the substantive sentence to stand suspended. If the petitioner has deposited Rs.25,000/- in the Court of learned Additional Sessions Judge, Pune, said deposit be appropriated towards compliance of this order. If the amount is not deposited, he should do so within two weeks from today. ii) That part of the order by which petitioner is directed to be released on bail in the sum of Rs.10,000/- need not be interfered with. Iii) The petitioner is granted four weeks time to furnish surety in the sum of Rs.10,000/- iv) Petitioner to place authenticated copy of this order before the learned Additional Sessions Judge, Pune. (R.Y.GANOO, J.) 7