TMI Blog2015 (1) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioner that the appellate court while suspending the substantive order of sentence, imposed a condition that the petitioner shall deposit 25% of the amount of the cheque within one month, failing which, the bail bond shall automatically stand cancelled. The said order was passed below Exh.5 in Criminal Appeal No.125 of 2011 on 21st October 2011 by the Principal Sessions Judge, Mehsana. Learned advocate for the petitioner made a grievance that the total cheque amount comes to about Rs.10,60,000/-, and 25% of the same would come to Rs.2,65,000/-. Learned advocate for the petitioner submits that at the best the appellate court could have directed the petitioner to deposit the entire amount of fine as a condition precedent for suspending the substantive order or sentence. However, the appellate court could not have passed an order of depositing 25% of the total amount of the cheque. Learned advocate further pointed out from the record that the petitioner, therefore, submitted an application Exh.16 before the learned Sessions Judge, and pointed out to the learned Sessions Court that the imposition of condition to deposit 25% of the cheque amount is too harsh, the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suspending the substantive order of sentence. 8. The Honourable Supreme Court in the case of Dilip S. Dahanukar (Supra) observed in paragraphs No.55, 56, 65, 68 and 69 as under: 55. Unfortunately, the Legislature has not made any express provision in this behalf. In absence of any express provision, the question must be considered having regard to the overall object of a statute. We have noticed hereinbefore that Article 21 of the Constitution of India read with Section 374 of Crl.P.C. confers a right of appeal. Such a right is an absolute one. In a case where a judgment of conviction has been awarded, the Court can release a person on bail having regard to the nature of offence but as also the other relevant factors including its effect on society. A person upon arrest may have to remain in jail as an under trial prisoner. So would a person upon conviction. A person may also have to remain in jail, in the event he defaults in payment of fine, if he is so directed. But when a direction is issued for payment of compensation, having regard to Sub-Section (2) of Section 357 of the Code, the application thereof should ordinarily be directed to be stayed. It will, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uspending the sentence under Section 389 of the Criminal Procedure Code, 1973 on certain terms and conditions, which are not harsh. 9. 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. 10. In the decision of Sumit Mehta (Supra), the Honourable Supreme Court interpreted the words `any condition used in Section 438 of the Code of Criminal Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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