SMT. MADHURI INDIRA RAO vs VYAS PATHAK

Court: Chhattisgarh High Court
Case type: CRIMINAL MISC. PETITION
Decided on: 07-04-2026

<div> 1 2026:CGHC:15762 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 972 of 2026 1 - Smt. Madhuri Indira Rao W/o Shri Mahesh Rao Aged About 58 Years R/o- 21/493, Opposite Bungalow Of District And Session Court, Civil Line, Thana- Civil Line Raipur, District- Raipur (C.G.) ... Petitioner versus 1 - Vyas Pathak S/o Shri Kaanti Kumar Pathak Aged About 43 Years R/o Village- Navagaon, Post Pandatari, Tehsil Pandariya, District Kabirdham (C.G.) ... Respondent --------------------------------------------------------------------------------------------- For Petitioner : Mr. J.K. Gupta, Advocate. For Respondent : Not noticed. Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 07/04/2026 Heard. 1 The present petition has been filed by the petitioner under Section 528 of the BNSS, 2023 being aggrieved by the impugned order dated 31.01.2026 passed in Criminal Appeal No. 05/2026 by the Learned Second Additional Sessions Judge, Kawardha, District – Kabirdham (C.G.) whereby the learned Sessions Court has imposed a condition of depositing 20% (Rs. 8,00,000/-) of the compensation/fine amount within 60 days while suspending the execution of the judgment dated 01.01.2026 on an application preferred under Section 430 of BNSS, 2023. 2 2026:CGHC:15762 2 Brief facts of the case are that the respondent/complainant filed a case under Section 138 of N.I. Act against the petitioner before the learned Judicial Magistrate First Class, Pandariya, District – Kabirdham (C.G.). The learned trial Court after taking into consideration the facts and circumstances of the case and evidence adduced in the case passed the judgment dated 01.01.2026 and convicted the present petitioner and sentenced him to undergo S.I. for 1 year and directed to pay a compensation of Rs. 40,00,000/- under Section 357(3) of Cr.P.C. with default stipulation of three months S.I. 3 Being aggrieved by the aforesaid judgment/order the petitioner preferred a Criminal Appeal under Section 415 of BNSS, 2023 before the Learned appellate Court along with an application under Section 430 of BNSS, 2023 for suspension of execution of judgment/order dated 01.01.2026 which got allowed with a condition that petitioner shall deposit 20% (Rs. 8,00,000/-) of the compensation amount within 60 days while suspending the execution of the judgment/order dated 01.01.2026. 4 Learned counsel for the petitioner contended that the word 'may' has been used in Section 148 of the N.I. Act an the Appellate Court has used discretion but has not given any reason for the same. The learned appellate court has committed grave error while passing the impugned order dated 31.01.2026 and has wrongly imposed a condition of depositing 20% of the compensation amount while suspending the execution of order dated 01.01.2026. The learned Appellate court has without following the provisions of the Code of Criminal Procedure, 1973 and without considering the facts material available on record passed the impugned order, hence it is liable to be quashed. 5 Since the issue before this Court hinges upon the interpretation of Section 148 of the N.I. Act, which was subsequently incorporated to the N.I. Act vide the Negotiable Instruments (Amendment) Act, 2018 (Act No. 20 of 2018), the relevant part thereof is reproduced hereunder:- 3 2026:CGHC:15762 1 ["148. Power of Appellate Court to order payment pending appeal against conviction.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court: Provided that………" (2)….. (3)….. Provided that …...] 6 Hon’ble Supreme Court in the matter of Jamboo Bhandari vs. 2 M.P. State Industrial Development Corporation Ltd. & Ors . , passed in Criminal Appeal No. 2741 of 2023 (@ SLP (Crl.) No. 4927 of 2023 ) on 04.09.2023 held as under: “ 7 . Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.” 7 The Hon’ble Supreme Court in the matter of Muskan 3 Enterprises & Anr. vs. State of Punjab & Anr. , also followed the judgment passed in Jamboo Bhandari (supra) and set aside the impugned order of the High Court as well as the Sessions Court. 8 In the case in hand, impugned order of the learned Appellate court does not disclose anything that the learned Appellate court considered whether the cases in the exception or not? i.e. whether it warrants grant of suspension of sentence without 1 Inserted by Act No. 20 of 2018, w.e.f. 1-9-2018. 2 (2023) 10 SCC 446 3 2024 SCC OnLine SC 4107 : MANU/SC/1431/2024 4 2026:CGHC:15762 imposing the condition of deposit of 20% of the fine / compensation amount. 9 In those circumstances, the impugned order of the learned Appellate court is set aside and restored the application filed by the petitioner under Section 389 of Cr.P.C. corresponding to Section 430 of BNSS before the Appellate court. The learned Appellate court shall reconsider the application afresh and dispose of the same with a fresh reasoned order as early as possible. Till then, the execution of order dated 01.01.2026 passed by Judicial Magistrate First Class, Pandariya, District - Kabirdham (C.G.) in Criminal (Complaint) Case No. 104/2019 stands suspended. 10 Accordingly, the CRMP is disposed of at the stage of admission. Sd/- (Sanjay Kumar Jaiswal) Judge H.L. Sahu </div>