PUSHPENDRA SINGH BHATI,J. - (1.) Petitioner has preferred this misc. petition under section 482 of Cr.P.C., 1973 for modification of the order dated 15.07.2017 passed by learned Session Judge, Jodhpur Metropolitan in Criminal Appeal No. 399 of 2017 Mahendra Das v. State and Anr.
(2.) Learned counsel for the petitioner submits that the matter is squarely covered by the judgment rendered by a coordinate Bench of this Court in Tara Chand Prajapat v. State and Anr. (S.B. Criminal Misc. Petition No. 1387/2017) decided on 10.05.2017.
(3.) The coordinate Bench of this Court on 10.05.2017 has passed the following order in Tara Chand Prajapat v. State (Supra):- "This criminal misc. petition under Section 482 Cr.P.C., 1973 has been preferred by petitioner against order dated 13.04.2017 passed by District and Sessions Judge, Bikaner (for short, 'learned appellate Court'), whereby learned appellate Court has imposed a condition of depositing Rs. 20,000/- while suspending the sentence of petitioner on an application preferred under Section 389(1) Cr.P.C., 1973 Brief facts of the case are that Special Judicial Magistrate (N.I. Act Cases), No. 3, Bikaner (for short, 'learned trial Court') in Criminal Case No. 226/2015 has convicted the petitioner for commission of offence punishable under sections 138 of the Negotiable Instruments Act and has sentenced him for six moths' simple imprisonment and further directed to pay a compensation of Rs. 95,000/-and in default of payment, thirty days' additional simple imprisonment vide judgment dated 30.03.2017. Being aggrieved with judgment dated 30.03.2017, petitioner has preferred an appeal before the appellate Court along with an application under Section 389(1) Cr.P.C., 1973 for suspension of sentence awarded by trial Court. The appellate Court has allowed the application for suspension of sentence while imposing the pre condition of depositing Rs. 20,000/-. The petitioner has challenged imposition of the condition of depositing of Rs. 20,000/- by way of present criminal misc. petition. Learned counsel of the petitioner has submitted that while exercising the powers under sub-section (1) of Section 389 Cr.P.C., 1973 the appellate Court has illegally imposed the condition of depositing Rs. 20,000/-and as such, the order passed by the appellate Court up to that extent is illegal and liable to be quashed. Learned counsel for the petitioner has placed reliance upon the judgment of this Court passed in case of Bhagwati Sahay Katriya v. State of Rajasthan and Anr. reported in 2010 (1) Cr.L.R. (Raj.) 684 and submitted that this Court has categorically held in above mentioned case that no such condition can be imposed by the appellate Court while exercising powers under sub-Section (1) of Section 389 Cr.P.C., 1973 Learned counsel for the petitioner has, therefore, prayed that the condition of depositing of Rs. 20,000/- as imposed in order dated 13.04.2017 may be deleted. Learned Public Prosecutor appearing for the State is unable to dispute the said position of law. This Court, in Bhagwati Sahay Katriya's case (supra), while taking into consideration the earlier judgments of this Court, has laid down that no such pre-condition of depositing part of compensation can be imposed by a Court while exercising powers under Sub-section (1) of Section 389 Cr.P.C., 1973 In view of above, this criminal misc. petition filed under Section 482 Cr.P.C., 1973 is allowed and the condition of depositing Rs. 20,000/- mentioned in order dated 13.04.2017, is ordered to be deleted. Impugned order dated 13.04.2017 is modified accordingly." ;