1 (crim appln 1438 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1438 OF 2010 Rameshwar Nath Shukla and Anr. ...Applicants Vs. the State of Maharashtra & Anr. ...Respondents ----- Mr.Santosh Kyaliguppi i/b. Mr. Kiran Kulkarni for Applicants Mr.A.S. Shitole -APP for the State. Mr.Ajay S. Jajodia - Respondent no.2 present in person ----- CORAM: V.M. KANADE J. DATED: 8TH SEPTEMBER, 2010 P.C. 1. Heard the learned Counsel for the Applicants and the Respondent No.2, who is appearing in person. 2. This application has been filed challenging the order passed by the Sessions Court dated 7.12.2009 whereby, the order of sentence passed by the Trial Court in C.C.No. 1097/SS/2006 was stayed and suspended subject to the condition that the Applicants -original accused shall deposit an amount of Rs.4,35,000/- in addition to the sum of Rs.2,90,000/- which was deposited by them in the Sessions Court. 2 (crim appln 1438 of 2010) 3. The learned Counsel for the Applicants submits that the said condition of asking the Applicants to deposit an amount of Rs.4,35,000/- in addition to the amount of Rs.2,90,000/- was unreasonable. He submitted that the company in which the Applicants were directors, has been wound up pursuant to the order passed by this Court in the Company Petition and, therefore, the Applicants were not in a position to pay the said amount on account of financial inability. He submitted that the Applicant No.1 was only receiving pension as ex-serviceman. The learned counsel for the Applicants has relied on a judgment of the Apex Court in the case of Dilip S.Dahanukar v. Kotak Mahindra Co. Ltd., reported in 2007 Cri.L.J.2417. He invited my attention to the various paragraphs of the said judgment. He submitted that the appeal was a statutory right of the Applicant and the said right would not be taken away by imposing unreasonable condition. He also has relied on number of judgments where similar view is taken. 4. The Respondent No.2, who is appearing in person, on the other hand, has filed an affidavit in reply, in which he has stated that the Applicants had filed their defence in the company petition which was filed in the High Court and the Company Court had observed 3 (crim appln 1438 of 2010) that the defence of the Applicants herein was clearly an after thought and was fraudulent. He further pointed out that Company Court had further observed that the defence raised on behalf of the respondent is not honest or bonafide. He then submitted that the Applicants were an habitual offenders and involved in various other criminal cases, which were pending against them in different court and the Applicant No.1 has been convicted in another case also. 5. In my view, taking into consideration the reply given by the Respondent No.2, who is appearing in person, it is not possible to accept the submission of the Learned counsel for the Applicants. The Apex Court in the case of Dilip S.Dahanukar (supra) in paragraph 73 has summed up the legal position as under. “73. We, therefore, are of the opinion: i) In a case of this nature, sub-section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation; ii) The Appellate Court, however, while suspending the sentence, was entitled to 4 (crim appln 1438 of 2010) put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitution and statutory right; iii)The amount of compensation must be a reasonable sum; iv)The Court, while fixing such amount, must have regard to all relevant factors including the one referred to in sub- section (5) of S.357 of the Code of Criminal Procedure; v) No unreasonable amount of compensation can be directed to be paid.” The total amount of compensation awarded by the Trial Court is Rs.29,00,000/- and if the direction to deposit given by the Sessions Court is taken into consideration, the said amount would come to Rs.4,25,000/- of the total amount of compensation. In my view, the said amount is quite reasonable. Though my attention was invited to the observations made by the Apex Court in paragraph 68 of the said order, the said observation would not apply on the facts of the present case since the Company Court had also observed that the defence of the Applicants was 5 (crim appln 1438 of 2010) an after thought and was fraudulent. 6. Under these circumstances, therefore, it is not possible to interfere with the order passed by the Sessions Court. 7. Application, therefore, is dismissed. 8. The Sessions Court, however, is directed to hear and decide the appeal expeditiously and if possible, within a period of three months. If any pending applications, may be disposed of expeditiously. (V.M. KANADE J.)