Piyush Agrawal,J. - (1.) This application under Section 482 CrPC has been filed for quashing the orders dated 24.2.2020 and 24.9.2020 passed by learned Sessions Judge Agra in Criminal Appeal No. 15 of 2020, (Brijnandan Sharma Vs. State of UP) under Section 138 of N.I. Act, Police Station Hapur Kotwali, Distt. Hapur arising out of judgment and order dated 24.1.2020 passed by Chief Judicial Magistrate, Hapur in Complaint Case No. 282 of 2009 (Hitesh Kumar Vs. Brijnandan Sharma) under Section 138 of Negotiable Instruments Act, whereby learned Sessions Judge, Hapur granted bail to the applicant on the condition of deposit 35% of the amount of Rs.75,00,000/- imposed as fine by the learned Magistrate.
(2.) Learned counsel for the applicant submits that the applicant is a very poor and he is not in a position to deposit such a huge amount. He further submits that appellant is an old man and entire conspiracy hatched to grab the agricultural land of the applicant against which a civil suit is also pending. The court below has not considered the amount of fine, which is unreasonable and ought to have been reduced.
(3.) Learned counsel for the applicant relied upon the judgement and order of this Court in Application U/s 482 No. 14999 of 2018 (Yatendra Bharadwaj Vs. State of UP) dated 25.5.2018 wherein this Court has passed the following order:- "This application under Section 482 CrPC has been filed for quashing the order dated 22.03.2018 passed by learned Sessions Judge Ist, Agra in Criminal Appeal No. 102 of 2018 (Yatendra Bhardwaj Vs. State of U.P. and others), under Section 138 of N.I. Act, Police Station New Agra, District Agra arising out of judgment and order dated 21.02.2018 passed in Complaint Case No. 3683 of 2016 (Madhsudan Sharma Vs. Yatendra Bhardwaj) under Section 138 of Negotiable Instruments Act, whereby learned Sessions Judge Ist, Agra granted bail to the applicant on the condition of deposit 1/4th of the amount of Rs.75,00,000/- imposed as fine by the learned Magistrate. Brief facts of the case are that an account payee cheque bearing no. 338135 dated 15.03.2016 for an amount of Rs.70,00,000/- was issued by the applicant in favour of the Opposite Party, which was dishonoured due to insufficiency of funds. The cheque amount was not paid by the applicant even after the notice given by the respondent. Consequently, the respondent filed a Complaint Case in the Court of learned Magistrate under Section 138 of N.I. Act. The applicant has been convicted by the learned Magistrate in the complaint filed under Section 138 of the Negotiable Instruments Act and he was sentenced to simple imprisonment of one year and fine to the tune of Rs.75,00,000/-, out of which, Rs. 70,00,000/- was directed to be paid to the complainant /respondent as compensation. Aggrieved by the said order, an appeal was filed by the applicant against the judgment and order of conviction and sentence, whereby applicant was enlarged on bail on 22.03.2018 subject to the condition that the applicant shall deposit 1/4th of total fine of Rs.75,00,000/- and in case, the said amount is deposited, he shall be released on bail on furnishing a personal bond of Rs.20,000/- and two sureties of the equal amount till the disposal of appeal. Admittedly, 1/4th of the total fine has not been deposited by the applicant and the present application under Section 482 CrPC has been filed challenging the order dated 22.03.2018 imposing the condition for suspension of sentence and releasing him on bail. Heard Sri Mithilesh Kumar Shukla, learned counsel for the applicant and learned AGA for the State. Learned counsel for the applicant has submitted that the order dated 22.03.2018 is against the statutory provision of law and realization of fine ought to have been stayed by the Appellate Court during the pendency of the appeal specially when the bail has been granted to the applicant. Learned counsel for the applicant has further submitted that if the applicant is compelled to deposit 1/4th of the amount of fine about Rs.18,75,000/- for being released on bail, the filing of appeal would be a futile exercise, which would be an abuse of the process of the court and as such, the impugned order passed by the Appellate Court as a pre-condition for being released on bail is unreasonable, unjust and onerous. On the contrary, learned AGA for the State has contended that apart from the sentence and imprisonment, fine has also been imposed by the Trial Court and the Appellate Court has rightly directed to deposit 1/4th of amount of the fine as a pre-condition for being released on bail and the Appellate Court is well within its power to impose condition for suspension of sentence. In view of the rival contentions raised by learned counsel for the parties, it would be appropriate to consider the relevant provisions of Criminal Procedure Code, particularly, Section 357 of CrPC, which deals with the order to pay compensation. "Section 357. Order to pay compensation. (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment order the whole or any part of the fine recovered to be applied - (a)in defraying the expenses properly incurred in the prosecution; (b)in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c)when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d)when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section." Section 389 CrPC provides suspension of sentence pending the appeal and release of appellant on bail, which is quoted herein below :- "Section 389. Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,- (i)where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii)where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced." As per provisions of Section 357 CrPC, the Court may impose a sentence of fine simplicitor or a sentence where it forms part thereof. Where Court imposes a sentence of fine as a part of substantive sentence, the Court is entitled to direct that whole or any part of the fine recovered to be applied in respect of the factors enumerated in Clauses (1), (b), (c) or (d). In the case in hand, fine has been awarded by the Trial Court as a part of substantive sentence and there is a direction by the Trial Court to apply part of the amount of fine to be applied for payment of compensation as enumerated in Clauses (a) to (d) of Section 357 (1) of CrPC. As regards condition of deposit of 1/4th of the fine amount as imposed in the present case for suspending the substantive sentence, Hon'ble Apex Court in the case of Stanny Felix Pinto Vs. Jangid Builders Pvt. Ltd. and another reported in (2001) 2 SCC 416 has made following observations :- "We find that while suspending the sentence for the offence under Section 138 of the Negotiable Instruments Act, it is advisable that the Court imposes a condition that the fine part is remitted within a certain period. If the fine amount is heavy, the Court can direct at least a portion thereof to be remitted as the convicted person wants the sentence to be suspended during the pendency of the appeal." It is further germane to point out here that the aforesaid decision was followed by the Hon'ble Apex Court in the case of Dilip S. Dhanukar Vs. Kotak Mahindra Company Limited and another, reported in (2007) 6 SCC 528, wherein it has been held that not only amount of compensation must be reasonable, but condition for suspending the sentence should also be reasonable. Hon'ble Apex Court in para nos. 38 and 39 of the said judgment has held :- "38.............The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-Section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate case, Such a jurisdiction cannot be exercised at the whims and caprice of a judge." "39. .............If a fine is to be imposed under the Act, the amount of which in the opinion of the Parliament would be more than sufficient to compensate the complainant; can it be said, that an unreasonable amount should be directed to be paid by the Court while exercising its power under sub-section (3) of Section 357? The answer thereto must be rendered in the negative. Sub-Section (5) of Section 357 also provides for some guidelines. Ordinarily, it should be lesser than the amount which can be granted by a Civil Court upon appreciation of the evidence brought before it for losses which might have reasonably been suffered by the plaintiff. Jurisdiction of the Civil Court, in this behalf, for realization of the amount in question must also be borne in mind. A criminal case is not a substitution for a civil suit, far less execution of a decree which may be passed." In Dilip S. Dhanukar (supra), Hon'ble Apex Court has further concluded in following terms: "(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 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. Bail or Jail at the pre-trial or post conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion." Further Hon'ble Court has observed : "personal liberty, deprived when bail is refused is too precious a value of our constitutional system recognized under Article 21 of the Constitution that the crucial power to negate is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individuals and the community." In Keshab Narayan Banerjee and another Vs. State of Bihar, AIR 1985 SC 1666, Hon'ble Supreme Court has held that : "The condition imposed by the High Court for enlarging appellant no.1 on bail, namely that he should furnish security for rupees one lakh in cash or in fixed deposit of any nationalized bank in Bihar with two local sureties residing in State of Bihar each to a like amount appears excessively onerous and in the circumstances of this case, it virtually amounts to denial of bail itself." Similarly, in the case of Sheikh Ayub Vs. State of M.P. (2004) 13 SCC 457, the condition for furnishing surety bond of Rs.50,000/- and direction to deposit Rs.2,50,000/- alleged to be the amount misappropriate by the accused was also held to be onerous and amounting to denial of bail. In view of the aforesaid judgments, it is evident that the Appellate Court may impose a condition while suspending the sentence, however, the power of imposing conditions is discretionary and the Court while suspending the sentence can always direct the applicant to deposit fine in the court but the amount of such condition must not be unreasonable, onerous and unjust so as to deprive the applicant from being released on bail. Admittedly, in the present case, the applicant has been convicted under Section 138 of Negotiable Instruments Act and in the circumstances of the case, he would be ordinarily granted bail during the trial in view of the facts that the offence is bailable. Even during the course of trial, he has been on bail, therefore, while exercise of appellate power, a person must not be made to suffer by imposing such condition for being released on bail, which may be onerous. In the case in hand, although the applicant has been directed to be released on bail but a pre-condition has been imposed to deposit 1/4th of amount of the fine of Rs.75,00,000/- for suspension of sentence, which appears to be onerous and harsh. In view of the aforesaid law laid down by the Hon'ble Apex Court, while suspending the sentence and granting bail to the accused, such condition should not be imposed, which amounts to be onerous. Such condition virtually amounts to denial of bail to the accused, who was otherwise entitled for the same. In view of the foregoing discussions, pre-condition to deposit 1/4th of amount of the fine of Rs.75,00,000/- for being released on bail being onerous and harsh is liable to be modified to the extent of only 10% of the fine of Rs.75,00,000/- imposed by the appellate Court. In the result, the application under Section 482 CrPC is partly allowed with the modification to deposit only 10% of the amount of fine of Rs.75,00,000/- imposed by the appellate Court as a pre-condition for being released on bail and on furnishing a personal bond of Rs.20,000/- and two sureties of the like amount to the satisfaction of the court concerned till the disposal of the appeal. The application under Section 482 CrPC is accordingly partly allowed to the extent noted above." 4. Learned counsel for the applicant submits that in the aforesaid case similar controversy is involved as such the benefit of the said order may be extended to the applicant also. 5. Heard learned counsel for the applicant; learned Government Advocate and perused the records. 6. In view of the aforesaid fact, the application under Section 482 Cr P C is partly allowed. The orders dated 24.2.2020 and 24.9.2020 passed by learned Sessions Judge Agra in Criminal Appeal No. 15 of 2020, (Brijnandan Sharma Vs. State of UP) under Section 138 of N.I. Act, Police Station Hapur Kotwali, Distt. Hapur are hereby modified to the extent that the applicant shall deposit only 10% of the amount of fine of Rs.75,00,000/- imposed by the appellate Court as a pre-condition for being released on bail and on furnishing a personal bond of Rs.20,000/- and two sureties of the like amount to the satisfaction of the court concerned till the disposal of the appeal. ;