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NC: 2024:KHC:49736
WP No. 28274 of 2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 3RD DAY OF DECEMBER, 2024

BEFORE
THE HON'BLE MR JUSTICE [Link]

WRIT PETITION NO. 28274 OF 2024 (GM-RES)

BETWEEN:

SMT PADMAJA RAO

AGED ABOUT 59 YEARS,
W/O SRI PRAKASH PADNEKAR,
R/AT AVANI NO 799, 2ND MAIN ROAD,
2 ND CROSS ROAD, BCHS LAYOUT,
VAJRAHALLI, BENGALURU 560062
…PETITIONER
(BY SRI. NAYANA TARA B.G..,ADVOCATE)

AND:

SRI VEERENDRA SHETTY

PROPRIETOR VEERU TALKIES
S/O SRI. VISHWANATH SHETTY
MAJOR
Digitally signed RESIDING AT FLAT NO.210,
by NAGAVENI MATHA RESIDENCY, OPP. MOUNT CARMEL SCHOOL,
Location: HIGH
COURT OF MARY HILL, MANGALURU - 575008
KARNATAKA …RESPONDENT
(BY SRI. PALLAVA R., ADVOCATE)

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE

CONSTITUTION OF INDIA READ WITH SECTION 528 OF THE
BHARTIYA NAGRIK SURAKSHA SANHITHA PRAYING TO DIRECT OF
SIMILAR NATURE THEREBY QUASHING THE ORDER DTD 29.08.2024
BY THE IV ADDL. DISTRICT AND SESSIONS JUDGE, MANGALURU,
D.K AT ANNEXURE-A INSOFAR AS IT STIPULATES THAT THE
PETITIONER SHALL DEPOSIT 20 PERCENT OF THE CHEQUE AMOUNT.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER

WAS MADE THEREIN AS UNDER:
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WP No. 28274 of 2024

CORAM: HON'BLE MR JUSTICE [Link]

ORAL ORDER

The petitioner is before this Court calling in question an

order dated 29.08.2024 by which the concerned Court i.e., the

Court of Session directs deposit of 20% of the cheque amount

in terms of Section 148 of the Negotiable Instruments Act,

1881 (for short 'N.I. Act') and makes it a condition precedent

for suspension of sentence.

2. Heard the learned counsel Smt. Nayana Tara B.G.,

appearing for the petitioner and the learned counsel

[Link]., appearing for the respondent.

3. The petitioner is the accused and the respondent is

the complainant. The two have a transaction. The transaction

has allegedly resulted in issuance of certain cheques. The

cheques having been dishonoured leads the complainant to the

concerned Court invoking Section 200 of the Cr.P.C., for

offence punishable under Section 138 of the N.I. Act. The

concerned Court convicts the petitioner of the offences in terms

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WP No. 28274 of 2024

of its order dated 24.08.2024 against which the petitioner

prefers an appeal. In the appeal, the Appellate Court suspends

the sentence subject to the condition that the petitioner would

deposit 20% of the cheque amount as obtaining under Section

148 of the NI Act. The direction of that deposit has driven the

petitioner to this Court in the subject petition.

4. The learned counsel appearing for the petitioner

[Link] Tara B.G., would submit that no amount should

have been directed to be paid in the case at hand, as the case

projects glaring circumstances. The learned counsel would

submit that the cheques were stolen. They were forged and the

cheques were presented before the Bank in the name of the

present petitioner.

5. The learned counsel would further submit that the

report of the Forensic Science Laboratory (FSL) is also in favour

of the petitioner and therefore, the condition of deposit of 20%

should not be imposed and the appeal should be permitted to

be argued and a direction for closure of the appeal, within a

time framed should be given.

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6. Per contra, the learned counsel appearing for the

respondent would refute the submission to contend that the

petitioner has been convicted of the offence and once convicted

the petitioner would not get the right to contend that the very

conviction is wrong in a proceeding under Section

482 of Cr.P.C.

7. The learned counsel would submit that he has no

objection for setting aside of the order on the score that it runs

counter to the judgment of the Apex Court in the case of

JAMBOO BHANDARI V. M.P. SIDC LTD. reported in (2023) 10 SCC 446,

but seeks leave that, the Court should be directed to reconsider

the order of suspension of sentence and the condition that is

imposed.

8. I have given my anxious consideration to the

contentions of respective learned counsel and have perused the

material on record.
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WP No. 28274 of 2024

9. The issue in the lis revolves around a narrow

compass at this juncture. It is with regard to the amount of

20% that is ordered to be paid as a condition precedent for

suspension of sentence of the petitioner, who gets convicted of

an offence under Section 138 of the Negotiable Instruments

Act. The order directing deposit of 20% and making it a

condition precedent to suspend the sentence, reads as follows:

" Order on I.A No.I

Heard the arguments of learned counsel

representing the Appellant on I.A-1 u/S.389(1) of
Cr.P.C. for suspending the operation and execution of
Judgment of conviction & order of sentence in
C.C No.941/2020 dated 24.08.2024 passed by the trial
court pending disposal of the appeal.

Perused the impugned judgment of the trial

court. The accused has been convicted & sentenced to
pay a fine of Rs.40,20,000/- and in default shall
undergo S.I. for a period of three months for the
offence punishable u/S.138 of NI Act & out of the fine
amount, a sum of Rs.40,17,000/- has been ordered to
be paid as compensation to the complainant. Balance
amount is ordered to be remitted to the State.

Having perused the impugned judgment and the

grounds urged by the Appellant in the memorandum of
appeal, it appears that there is sufficient material to
consider the appeal on merits and meanwhile the
operation of the order of sentence needs to be
suspended subject to conditions and accordingly, the
following order is passed:

ORDER

The execution of the sentence imposed under the

impugned judgment is hereby stayed subject to the
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WP No. 28274 of 2024

condition that the Appellant / accused shall deposit 20%

of the cheque amount before the Trial Court forthwith
and to execute a personal bond for Rs.50,000/- with a
surety for like-sum to the satisfaction of the trial court
within 60 days from today.

Issue notice on appeal memo to the respondent.

Intimate the trial court to send the TCR after
compliance by the appellant. Call on 29.10.2024."

10. A perusal at the order so passed by the concerned

Court directing 20% of the amount to be paid would fly foul on

the judgment rendered by the Apex Court in the case of

Jamboo Bhandari (supra), wherein the Apex Court has held

as follows:

" 8. The submission of the learned counsel

appearing for the original complainant is that neither
before the Sessions Court nor before the High Court,
there was a plea made by the appellants that an
exception may be made in these cases and the
requirement of deposit or minimum 20% of the
amount be dispensed with. He submits that if such a
prayer was not made by the appellants, there were
no reasons for the courts to consider the said plea.

9. We disagree with the above submission.

When an accused applies under Section 389CrPC for
suspension of sentence, he normally applies for
grant of relief of suspension of sentence without any
condition. Therefore, when a blanket order is sought
by the appellants, the court has to consider whether
the case falls in exception or not.
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10. In these cases, both the Sessions Courts

and the High Court have proceeded on the erroneous
premise that deposit of minimum 20% amount is an
absolute rule which does not accommodate any
exception.

11. The learned counsel appearing for the

appellants, at this stage, states that the appellants
have deposited 20% of the compensation amount.
However, this is the matter to be examined by the
High Court.

12. In these circumstances, we set aside the

impugned orders [Jamboo Bhandari v. M.P. SIDC
Ltd., 2022 SCC OnLine MP 5852] , [Satish Ji
Bhandari v. M.P. SIDC Ltd., 2022 SCC OnLine MP
5853] of the High Court and restore the revision
petitions filed by the appellants before the High
Court. We direct the parties to appear before the
roster Bench of the High Court on 9-10-2023 in the
morning to enable the High Court to fix a date for
hearing of the revision petitions. As the contesting
parties are before the Court, it will not be necessary
for the High Court to issue a notice of the date fixed
for hearing. The High Court, after hearing the
parties, will consider whether 20% of the amount is
already deposited or not. If the Court comes to the
conclusion that 20% of the amount is not deposited,
the Court will re-examine the revision petitions in the
light of what we have observed in this judgment. Till
the disposal of the restored revision petitions, the
interim order [Jamboo Bhandari v. M.P. SIDC Ltd.,
2023 SCC OnLine SC 1204] passed by this Court
ordering suspension of sentence will continue to
operate.

13. The appeals are allowed in above terms.

Pending application(s), if any, shall stand disposed
of."
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The Apex Court holds that it is not mandatory for the

concerned Court to direct payment of 20% of the cheque

amount in every case. It should be considered on a case to

case basis depending upon the merit of the matter.

11. Learned counsel for the petitioner has projected this

very submission that no amount need be paid in the case at

hand, as the cheques were stolen, crime is registered, the

cheques were sent to the FSL, the FSL report is in favour of the

petitioner.

12. Therefore, these submissions are to be advanced

before the concerned Court when the concerned Court would

direct payment of 20% of the amount, if any, after the matter

being remitted back to the hands of the concerned Court in

terms of the judgment of the Apex Court in the case of

Jamboo Bhandari (supra).

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13. For the aforesaid reasons, the following:

ORDER

i) The petition is allowed;

ii) The condition of imposition of 20% of the amount

and making it a condition precedent for suspension
of sentence stands quashed;

iii) The sentence shall remain suspended, till the

concerned Court would take up the issue of
imposition of condition on the suspension of
sentence;

iv) The parties are at liberty to urge all the contentions

before the concerned Court at that point in time;
and

v) All other contentions remain open.

The observations made in the course of the order is only

for the purpose of consideration of the issue brought before the
Court in the case at hand. The same shall not influence or bind
the concerned Court.

Ordered accordingly.

Sd/-
([Link])
JUDGE
KG/List No.: 1 Sl No.: 37