bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1105 OF 2008 PETITION NO. 1105 OF 2008 PETITION NO. 1105 OF 2008 M/s.Om Engineers & Builders & ors. ... Petitioners v/s 1. Vijaykant Motilal Kothari 2. State of Maharashtra ... Respondents Mr.Subhash Jha with Renu Singh i/by M/s.Law Global for the petitioners. Mr.A.M.Pungalia for the respondent No.1. Smt.A.A.Mane, A.P.P. for the respondent No.2 State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 24TH JUNE, 2008 24TH JUNE, 2008 24TH JUNE, 2008 P.C. P.C. P.C.: 1. The petitioners have challenged the order passed by the Sessions Court directing the deposit of Rs.28 lacs i.e. 50% of the total amount due as compensation as a condition precedent for suspending the sentence. The Trial Court has held that the petitioners have committed an offence punishable under Section 138 of the Negotiable Instruments Act. The Trial Court has directed that the petitioners should deposit an amount of Rs.79 lacs as compensation. The Sessions Court, while admitting the appeal, has imposed a condition that Rs.28 lacs should be deposited as a condition precedent 2 for suspending the sentence. It appears that Rs.One lac has already been deposited by the petitioners which is apparent from the order dated 3.5.2008. 2. Mr.Jha, learned advocate for the petitioners submitted that the condition of depositing Rs.28 lacs is unreasonable and, therefore, must be set aside. According to him, an appeal is a matter of right for the accused and suspension of the sentence must follow as a matter of course. However, he points out that, the Supreme Court judgment in the case of Dilip S. Dilip S. Dilip S. Dahanukar Dahanukar Dahanukar v/s Kotak Mahendra Ltd., reported in 2007 (6) v/s Kotak Mahendra Ltd., reported in 2007 (6) v/s Kotak Mahendra Ltd., reported in 2007 (6) SCC SCC SCC 528, 528, 528, the Supreme Court has observed that certain conditions can be imposed on the accused for suspending the sentence. He further submits that the amount of Rs.28 lacs which has been directed to be deposited by the petitioners is exhorbitant and wholly unreasonable in the facts and circumstances of the matter as the order in effect would frustrate the petitioners’ appeal. 3. The learned counsel for the respondent No.1 - complainant submits that no leniency needs to be shown to the petitioners as they have no defence in the litigation. He submits that it is not in every case that less than 50% should be directed to be deposited. According to him, the fact situation of the present case 3 indicate that the Sessions Court was right in imposing the condition of deposit of Rs.28 lacs as compensation. 4. In view of the Dilip S. Dahanukar’s Dilip S. Dahanukar’s Dilip S. Dahanukar’s case (supra), and in the facts and circumstances of the present case, in my view, it would be appropriate to direct the petitioners to deposit 25% of Rs.56,50,000/- which is the amount due and payable to the complainant under the dishonoured cheques. 5. The amount shall be deposited within four weeks from today. In the event the amount is so deposited, the sentence shall be suspended. 6. Writ petition disposed of accordingly.