Ram Chandra Khati vs State of Rajasthan and Another

H.R. Panwar, J.—Heard learned Counsel for the parties. Carefully gone through the order impugned dt. 28.07.2007 passed by Sessions Judge, Hanumangarh (for short, "the Appellate Court" hereinafter) in Criminal Appeal No. 89/2006.

It is contended by the learned Counsel for the petitioner that the petitioner was convicted, vide judgment and order dt. 24.04.2006 passed by the Chief Judicial Magistrate, Hanumangarh (for short, "the trial Court" hereinafter), for the offence u/s 138 of the Negotiable Instruments Act, 1881 (for short `the Act'' hereinafter) and sentenced to undergo one year''s rigorous imprisonment and a fine of Rs. 2,50,000/-. The petitioner preferred an appeal and the Appellate Court, vide order dt. 20.05.2006, on an application filed by the petitioner u/s 389 of the Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter), suspended the sentence awarded to the petitioner by the trial Court. However, by a subsequent order, i.e. impugned order dt. 28.07.2007, the Appellate Court directed the petitioner to deposit a sum of Rs. 10,500/- firstly on 29.08.2007 before the Appellate Court and thereafter on 29th of every month for twenty months, if the appeal is not decided and on such deposit, the sentence would remain suspended.

Learned Counsel for the petitioner submits that the subsequent impugned order dt. 28.07.2007 passed by the Appellate Court is erroneous to the extent that firstly there is no amount of Rs. 10,500/- imposed as the fine and even otherwise, when the sentence has been suspended vide order dt. 20.05.2006 then there was no occasion of the Appellate Court to direct the petitioner to deposit a sum of Rs. 10,500/-.

Upon hearing the learned Counsel for the parties, in my view, it appears that there are numerous appeals pending before the Sessions Judge, Hanumangarh and in most of the cases, Counsel for the appellants do not argue the appeal which gives rise to pendency of the case and, therefore, the Appellate Court modified the order dt. 20.05.2006 by the impugned order dt. 28.07.2007.

Learned Counsel for the petitioner submits that on the next date fixed before the Appellate Court, Counsel for the petitioner-appellant, without seeking any adjournment, would argue the appeal.

In view of the statement of the Counsel for the petitioner, the impugned order of the Appellate Court dt. 28.07.2007 imposing the condition of depositing Rs. 10,500/- on the petitioner, deserves to be set aside.

Accordingly, the impugned order dt. 28.07.2007 passed by the Appellate Court is set aside. If the Counsel representing the petitioner before the Appellate Court fails to argue the appeal, it will be open for the Appellate Court to decide the appeal itself after examining the record on merit even if the Counsel for the appellant-petitioner fails to argue the appeal.

The criminal miscellaneous petition is allowed to the extent above.