Bom HC | Appeal filed against conviction under S. 138 NI Act cannot be dismissed for non-payment of fine without going into merits of appeal

Bombay High Court: Vibha Kankanwadi, J., allowed a criminal revision application filed against the order of the Additional Sessions Judge whereby the appeal filed by the applicant against the decision of the trial court convicting him for dishonour of cheque punishable under Section 138 of the Negotiable Instruments Act, 1881, was dismissed for non-payment of fine. 

The applicant was convicted by the trial court under Section 138. He was sentenced to suffer simple imprisonment of 1 year and pay a fine of Rs 6.58 lakhs. The applicant filed an appeal against the decision of the trial court. The Additional Sessions Judge suspended his sentence pending the disposal of appeal subject to deposit of 20 percent of the fine amount as imposed by the trial court. However, the applicant failed to fulfill that condition within the prescribed limit and remained absent for a long time. In such circumstances, the Additional Sessions Judge dismissed the appeal in default for want of prosecution. Aggrieved thereby, the applicant file the instant revision application. 

The High Court gave due consideration to the submissions made by S.S. Bora, Advocate appearing for the applicant, and S.J. Salunke, Advocate representing the respondent. 

The Court relied on Bani Singh v. State of U.P., (1996) 4 SCC 720 and Vijay D. Salvi v. State of Maharashtra, (2007) 5 SCC 741, and reiterated that a criminal appeal cannot be dismissed for non-payment of fine, it will have to be disposed of on merits. 

In such view of the matter, the High Court held that the order passed by the Additional Sessions Judge was not a valid legal order and, therefore, quashed the said order. 

However, at the same time, the Court deprecated observed that the applicant cannot take the system for a ride. When the suspension of the sentence against him was conditional, then he was bound to obey those conditions. Deprecating the conduct of the applicant, the Court imposed costs of Rs 25,000 on him. [Adesh Prakashchand Jain v. Harish Punamchand Une, 2020 SCC OnLine Bom 96, decided on 08-01-2020]

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