PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C., 1973 against the order dated 19.11.2015 passed by learned Sessions Judge, Bikaner in Criminal Appeal No.247/2015 whereby he while allowing the application of the petitioner under Section 389 Cr.P.C., 1973 for suspension of sentence, directed the petitioner to deposit fifty percent amount of cheque i.e. 32,500 before the learned trial court.
(2.) The matter is covered by the judgment rendered by a coordinate Bench of this Court in Gurmeet Singh @ Baba v. State of Rajasthan and Anr., decided on 20.03.2015 .
(3.) The aforementioned order passed in Gurmeet Singh @ Baba v. State of Rajasthan and Anr. (supra) reads as under:- " The petitioner has filed this criminal misc. petition while challenging the order dated 17.01.2015 passed by the Additional Sessions Judge No.1, Sri Ganganagar (hereinafter referred to as 'the appellate court'), whereby an application under Section 389 Cr.P.C., 1973 filed by the petitioner for suspension of sentence, awarded to him by the Special Judicial Magistrate (NI Act Cases) No.1, Sri Ganganagar (hereinafter referred to as 'the trial court'), has been decided while imposing a condition that he shall deposit a fine of Rs. 1,00,000/- and also furnish a personal bond in the sum of Rs. 50,000/- and one surety bond of like amount. The petitioner has challenged the order dated 17.01.2015 to the extent of imposing the condition of depositing the amount of fine. Brief facts of the case are that in a proceeding under Section 138 of the Negotiable Instrument Act, the petitioner was convicted by the trial court and sentenced for six months' simple imprisonment vide judgment and order dated 20.12.2014. He was also directed to pay compensation in the sum of Rs. 2,50,000/- to the complainant. Feeling aggrieved of the aforesaid judgment passed by the trial court dated 20.12.2014, the petitioner preferred an appeal before the appellate court. Along with the said appeal, the petitioner filed an application under Section 389 Cr.P.C., 1973 for suspension of sentence awarded by the trial court during the pendency of the appeal. The appellate court decided the application for suspension of sentence vide impugned order dated 17.01.2015 and ordered that the sentence awarded to the petitioner by the trial court shall remain suspended subject to the condition that the petitioner may deposit the amount of fine i.e. Rs. 1,00,000/- and also furnish a personal bond in the sum of Rs. 50,000/- and one surety bond of like amount. Being aggrieved with the said condition of depositing fine, the petitioner has filed this criminal misc. petition. Learned counsel for the petitioner has argued that the appellate court has illegally imposed the condition of depositing amount of fine while suspending the sentence awarded to the petitioner by the trial court during the pendency of the appeal. It is further contended that imposing of such condition tantamounts to deprive the petitioner from his release on bail during the pendency of appeal. It is also contended that imposition of such condition would amount to refusal of suspension of sentence during the pendency of appeal. In support of above contention, the learned counsel for the petitioner has placed reliance upon the decision rendered by Coordinate Bench of this Court at Jaipur Bench in Amarveer Singh v. State of Rajasthan and Ors. reported in 2010 (1) Cr.L.R. (Raj.) 414. Per contra, learned Public Prosecutor has argued that the impugned order passed by the appellate court is suffering from any illegality as the appellate court has discretionary power to impose such condition, therefore, no interference is called for. Heard learned counsel for the parties and perused the impugned order. The coordinate Bench of this Court in Amarveer Singh's case (supra) while taking into consideration the question of power of appellate court of imposing any condition while deciding an application under Section 389 Cr.P.C., 1973 for suspension of sentence during the pendency of the appeal has held as under:- "10. The suspension of sentence is to release the accused on bail. In fact, the very heading of Section 389 Cr.P.C., 1973 states that "suspension of sentence pending the appeal; release of appellant on bail." Furthermore, the said provision has empowers the appellate Court to see that the execution of sentence or order appealed against, be suspended and also if he is in confinement that he be released on bail. Similarly, the said provision, in different eventuality, mentions about release of the accused on bail. 11. When a matter is considered fit for hearing and the substantive sentence of the petitioner is ordered to be suspended then imposition of condition of payment of amount, out of fine or compensation, is at all justified. This would mean that if a person who is in a position to make payment of the said amount, his sentence would be suspended and he would be deprived of hearing of appeal and will have to undergo sentence, although ultimately he may be acquitted. Poverty of the accused should come in the way of hearing the appeal or suspension of sentence in case the appeal is found to be worth hearing. ........ ........ ........ 19. .......In other words, the learned courts below are not to impose condition of any nature while suspending the sentence/granting bail to an accused which amounts to be onerous. Such imposition is virtually denial of bail to the accused even though he is entitled for the same, otherwise. 20. Therefore, in view of the question involved in this matter, it is to be noted that an accused for commission of offence under Section 138 of the Negotiable Instrument Act would ordinarily be granted bail in view of the fact that the offence is bailable one. Therefore, an accused is not to be taken in custody during trial. Likewise, while exercising appellate powers, a person should not be made to suffer imprisonment only because the conditions imposed for suspending the sentence are harsh." In view of the above law laid down by the Court in Amarveer Singh's case (supra), this criminal misc. petition is allowed. The impugned order dated 17.01.2015 to the extent of imposing condition of depositing fine is quashed and set aside. Stay petition is disposed of.";