HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Revision No.209 of 2010 Sudhir Kumar Bahuguna S/o Shri Shiv Lal Bahuguna … Revisionist Versus State and another …. Respondent AND Criminal Revision No.210 of 2010 Sudhir Kumar Bahuguna S/o Shri Shiv Lal Bahuguna … Revisionist Versus State and another …. Respondent AND Criminal Revision No.211 of 2010 Sudhir Kumar Bahuguna S/o Shri Shiv Lal Bahuguna … Revisionist Versus State and another …. Respondent AND Criminal Revision No.208 of 2010 Sudhir Kumar Bahuguna S/o Shri Shiv Lal Bahuguna … Revisionist Versus State and another …. Respondent Dated:- 16th December, 2010 Hon’ble Tarun Agarwala, J. Heard Mr. Raman Kumar Shah, the learned counsel for the revisionist and Mr. Pradeep Hairiya, the learned brief holder for the State. 2. In proceedings under Section 138 of the Negotiable Instruments Act, the trial court passed an order dated 07th September, 2009 sentencing the revisionist to undergo imprisonment for a period of 2 years alongwith a fine of Rs.1000/-. In addition to this, the trial court directed the revisionist to pay compensation to the tune of Rs.6 lakhs. The revisionist, being aggrieved by the aforesaid conviction, filed an appeal under Section 374 Cr.P.C. and also filed an application for stay of the sentence, etc. The lower appellate court admitted the appeal and stayed the sentence and the fine, but, imposed a condition that the revisionist would be enlarged on bail subject to furnishing a security of Rs.50,000/- and further the appellant would deposit 50% of the compensation, i.e. Rs.3 lakhs. It further transpires that the revisionist deposited a sum of Rs.50,000/- towards compensation and also filed another application praying for extension of time to deposit the balance amount. The lower appellate court granted further time to the revisionist. The revisionist, being aggrieved by the order of the lower appellate court directing the appellant to deposit 50% of the compensation, has preferred the present revision under Section 397 Cr.P.C. 3. The learned counsel for the revisionist submitted that once an appeal has been filed under Section 374 Cr.P.C., the provision of Section 357 Cr.P.C. is attracted automatically and that the sentence and fine is automatically suspended under sub-section (2) of Section 357 Cr.P.C. The learned counsel for the revisionist further submitted that the suspension of fine would also include the suspension of compensation and that the direction of the court to deposit 50% of the compensation was not only arbitrary, but also infringed the personal liberty of the revisionist, which is guaranteed under Article 21 of the Constitution of India. In support of his submission, the learned counsel for the revisionist placed reliance upon the decision of the Supreme Court in Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. & another 2007 (6) SCC 528, wherein the Supreme Court after analyzing various provision of the Cr.P.C., including the provision of Section 357 Cr.P.C. held :- “71. We are prima facie of the opinion (without going into the merit of the appeal) that the direction of the learned Trial Judge appears to be somewhat unreasonable. Appellant herein has been sentenced to imprisonment. Only fine has been imposed on the Company. Thus, for all intent and purpose, the learned Trial Judge has invoked 3 both Sub-sections (1) and (3) of Section 357 of the Code. The liability of the appellant herein was a vicarious one in terms of Section 141 of the Negotiable Instruments Act. The question may also have to be considered from the angle that the learned Trial Judge thought it fit to impose a fine of Rs. 25,000/- only upon the Company. If that be so, a question would arise as to whether an amount of compensation for a sum of Rs. 15 lakhs should have been directed to be paid by the Chairman of the Company. We feel that it is not. 72. 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 put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional 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 357 of the Code of Criminal Procedure; v) No unreasonable amount of compensation can be directed to be paid.” 4. The Supreme Court held that the provision of sub-section (2) of Section 357 Cr.P.C. would be attracted to a case of compensation awarded under Section 138 of the Negotiable Instruments Act and that the appellate court while suspending the sentence was entitled to put the appellant on terms and that such term could be imposed as a condition precedent for entertaining the appeal which otherwise is a constitutional and a statutory right to the appellant. The court held that the imposition of such condition imposed by the appellate court should be reasonable and should not be arbitrary. 5. In the light of the aforesaid provision enunciated by the Supreme Court, this Court finds that the lower appellate court, while suspending the sentence and fine, has put the revisionist to 4 certain terms, namely that he would furnish a security of Rs.50,000/- for being enlarged on bail and that he would further pay 50% of the compensation that was awarded, i.e., Rs.3 lakhs, out of the total compensation of Rs.6 lakhs. This Court finds that the case is under Section 138 of the N.I. Act and a finding has been given that the revisionist had taken money from the opposite party and, thereafter, refused to pay and a finding of guilt has been arrived at and he was sentenced to undergo imprisonment for 2 years. The court finds that the lower appellate court while suspending the sentence was justified in imposing a reasonable condition, namely, a deposit of 50% of compensation. Such direction given by the lower appellate court is in consonance with the judgment of the Supreme Court in Dilip S. Dahanukar (supra). 6. In view of the aforesaid, this court does not find any illegality in the order passed by the lower appellate court. This court further finds that the present revision has been filed against the order passed on the stay application and the said order is an interlocutory in nature and, consequently, no revision is maintainable in view of the provision of Section 397 Cr.P.C. The revision is dismissed accordingly. (Tarun Agarwala, J.) Dated 16.12.2010 LSR