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2015 (1) TMI 1477 - GUJARAT HIGH COURTDishonor of Cheque - Suspension of substantive order of sentence - imposition of condition to deposit 25% of the amount of the cheque by the petitioner - HELD THAT:- This Court is of the opinion that the Sessions Court has committed an error by imposing the condition to deposit 25% of the cheque amount while suspending the substantive order of sentence. The accused is having a statutory right to prefer an appeal before the Sessions Court, and when there is no order of grant of compensation passed by the learned Judicial Magistrate First Class in favour of the complainant, the Sessions Court could not have imposed the condition to deposit 25% of the cheque amount while suspending the substantive order of sentence. From the decision of the Honourable Supreme Court in Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. and another [2007 (4) TMI 667 - SUPREME COURT], it is clear that the petitioner accused is having a statutory right to prefer appeal before the Sessions Court. When such appeal is preferred, it is the duty of the learned Sessions Court to release the concerned accused on bail by suspending the sentence under Section 389 of the Criminal Procedure Code, 1973 on certain terms and conditions, which are not harsh. In the present case, it is clear from the record that the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. However, while suspending the sentence, a condition was imposed on the petitioner to deposit 25% amount of the cheque amount. From the facts of the case, it appears that the petitioner is not in a position to fulfil the said condition, and therefore, the said condition is too harsh. The Sessions Court while suspending the sentence could not have imposed such a condition, which is not possible for the accused to comply. If the accused is unable to comply with the said condition, the result would be that the said accused has to be sent to jail for non-fulfilment of the said condition, and therefore, the condition imposed by the Sessions Court of depositing 25% of the cheque amount is required to be quashed and set aside. In the present case, it is clear that while suspending the substantive order of sentence of the present appellant, the learned Sessions Court imposed a condition to deposit 25% of the cheque amount, which can be said to be a harsh condition as averred and contended by the petitioner in the petition. Petition allowed.
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