vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.601 OF 2008 WRIT PETITION NO.601 OF 2008 WRIT PETITION NO.601 OF 2008 Ashok Laxminarayan Khetan ... Petitioner V/s. M/s.Milind Foresight & Anr. ... Respondents Mr.Subhash Jha for Petitioner Mr.A.H.H. Ponda for Respondent No.1 Mr.H.J. Dedhia, APP, for Respondent-State CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: JUNE 25, 2008 JUNE 25, 2008 JUNE 25, 2008 P.C.: P.C.: P.C.: . The petition has been filed challenging the order passed by the Sessions Court directing the petitioner to deposit the amount of Rs.10 lacs on or before 24.3.2008 while suspending the sentence imposed by the Metropolitan Magistrate, 44th Court, Borivali in C.C. No.144/SS/2002. The aforesaid complaint was filed by the respondents under section 138 of the Negotiable Instruments Act. By a judgment and order dated 29.1.2008, the petitioner has been convicted for the offence punishable under section 138 of the Act. The petitioner has been sentenced to suffer simple imprisonment for six months with payment of compensation of Rs.20 lacs and in default to suffer a simple imprisonment for a further period of three months. The appeal preferred by the petitioner has been admitted by : 2 : the Sessions Court. However, while considering whether the sentence should be suspended, the Sessions Court has directed that the conviction and sentence should be suspended on condition that an amount of Rs.10 lacs is deposited by 24.3.2008. Admittedly, no amount has been deposited by the petitioner in respect of the compensation so far. 2. The learned advocate for the petitioner submits that in view of the judgment in the case of Dilip S. Dahanukar v/s. Kotak Mahindra Co. Ltd. reported in 2007 ALL MR (Cri) 1775 (SC) 2007 ALL MR (Cri) 1775 (SC) 2007 ALL MR (Cri) 1775 (SC) and the order passed by Marlapalle, J. in the case of Krishnakant Laddha v/s. Ghanshyam Khobrekar & Anr. (Criminal Writ Petition (Criminal Writ Petition (Criminal Writ Petition No.36 of 2007) No.36 of 2007) No.36 of 2007), the Sessions Court had erred in directing the deposit of 50% of the amount of compensation as it is an exorbitant and onerous sum for the petitioner. He also submits that the Supreme Court in Dilip Dahanukar’s case has observed that the accused who is convicted has a right of appeal which cannot be taken away by imposing conditions such as depositing of any amount for considering the appeal. According to him, the Supreme Court has in the case of Dilip Dahanukar (supra) equated the term "fine" with the term "compensation". He submits that the Supreme Court has considered the provisions of section 357 of the Cr.P.C. and while doing so, the Supreme Court has held that : 3 : section 357(2) would be attracted even when the accused is directed to pay compensation without imposition of fine u/s 357(3). He then submits that in any event the Sessions Court has erred in not considering that the Supreme Court has held that if at all compensation is payable as a condition precedent for suspending the sentenc, it must be a reasonable amount. According to the learned advocate, the Supreme Court in the case of Dilip Dahanukar (supra), has found that Rs.1,00,000/- was a reasonable amount when the amount due and payable by the accused was Rs.15 lacs. He, therefore, submits that only a reasonable amount can be directed to be deposited and for determining what is reasonable, the financial position of the petitioner must be taken into account. 3. The learned counsel for the respondent submits that while considering what is a reasonable amount the Court should also bear in mind provisions of section 80 of the Negotiable Instruments Act under which interest can be awarded alongwith the compensation @ 18% p.a. He submits that in the present case, cheques worth Rs.18,50,000/- were dishonoured. The trial Court has granted compensation of only Rs.20 lacs whereas the respondent would be entitled to much more under the Act having regard to section 80 of the Act. He submits that the respondent has also preferred a revision against the : 4 : order of conviction for enhancement of the compensation. 4. In Dilip Dahanukar’s case (supra), the Supreme Court while considering the import of section 357(1) which allows the Court to impose a fine of Rs.5,000/- and section 357(2) which empowers the Court to impose a fine plus twice the amount of cheque, held that there is no upper limit for the amount of compensation which can be ordered to be paid. The Supreme Court has observed that the very fact that the Parliament did not think it fit to put a ceiling in regard to the amount of compensation payable by an accused, the Court’s discretionary jurisdiction must be exercised judiciously. The Supreme Court has observed that while exercising the appellate power, ordinarily, a person should not suffer imprisonment only because the conditions imposed for suspending the sentence are harsh. 5. The Supreme Court has then held thus: 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 the 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 : 5 : 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 Section 357 of the Code of Criminal Procedure; (v) no unreasonable amount of compensation can be directed to be paid." 6. Thus, there is no doubt that the right to appeal is a statutory right available to the accused. However, while suspending the sentence, a reasonable amount of compensation can be directed to be deposited. While fixing such amount, the Court must having regard to all relevant factors including the one referred to under section 357(5) i.e. that the Court should take into account any sum paid or recovered as compensation in any subsequent civil suit relating to the same matter. 7. In the present case, the accused petitioner has been convicted by the trial Court and sentenced. Cheques worth Rs.18,50,000/- were dishonoured. The amount which the Sessions Court has directed to be deposited is 50% of the total compensation i.e. Rs.10 lacs. While considering what should be the appropriate amount which should be deposited at this juncture for suspending the sentence it would be necessary in my view, to consider the fact that the respondent in the : 6 : present case has sought enhancement of the compensation amount by filing a revision. Besides this, it would be necessary to note that u/s 80 of the Act interest @18% p.a. can be awarded to the complainant which in fact the trial Court has not awarded. Besides stating that his financial condition of the Petitioner is very precarious, there is no material on record in support of this averment in the petition. In such a situation, I am of the opinion that the reasonable amount in the facts and circumstances of this case would be 25% of Rs.18,50,000/-. 8. The order of the Sessions Court is thus modified to the following extent:- 9. The sentence imposed on the petitioner shall be suspended on condition that he deposits 25% of Rs.18,50,000/- within four weeks from today in the Sessions Court. 10. Petition is disposed of accordingly.