TMI Blog2018 (5) TMI 2027X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 75,00,000/- for suspension of sentence, which appears to be onerous and harsh. Pre-condition to deposit 1/4th of amount of the fine of ₹ 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 ₹ 75,00,000/- imposed by the appellate Court - Application allowed in part. - Application U/S 482 No. - 14999 of 2018 - - - Dated:- 25-5-2018 - Rajiv Gupta, J. Counsel for Petitioner :- Mithilesh Kumar Shukla, Avnish Kumar Shukla Counsel for Respondent :- G.A. JUDGMENT 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfinement, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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