Gujarat HC Replaces Full Cheque Deposit With 20% For Section 138 Convict’s Sentence Suspension, Requires Appeal Attendance at Every Hearing

The petitioner was convicted under Section 138 of the Negotiable Instruments Act, sentenced to one year’s simple imprisonment, and directed to pay compensation equivalent to the cheque amount.

After filing an appeal, he challenged the Sessions Court’s condition that he deposit the entire cheque amount within 60 days to obtain suspension of sentence.

The three connected matters concerned separate cheques and similar orders.

The respondent relied on the petitioner’s absences before the Magistrate and Appellate Court, and on his advocate’s retirement pursis, to support the condition.

Whether the Appellate Court’s requirement that the petitioner deposit 100% of the cheque amount as a condition for suspension of sentence was justified, absent special or cogent reasons.

Whether the petitioner’s non-attendance could be addressed by conditions securing his presence rather than by requiring deposit of the entire cheque amount.

Section 138 of the Negotiable Instruments Act concerns the offence of dishonour of a cheque; Section 148 provides for a deposit in an appeal by a convicted person, and the Court referred to its contemplated requirement when considering an appropriate percentage of the cheque amount.

Conditions imposed for suspension of sentence should not be onerous or incapable of compliance if imposed mechanically; the court must consider the circumstances of the case, including the petitioner’s financial condition and the fact that the conviction is under appeal.

The Appellate Court may address concerns about an appellant’s attendance by imposing conditions securing the appellant’s presence.

The Court found that the Appellate Court had not given special or cogent reasons for requiring deposit of the full cheque amount.

It held that such a condition should not be imposed mechanically and that the Appellate Court should consider the relevant circumstances, including the petitioner’s financial condition and pending appeal.

Although the respondent raised concerns about the petitioner’s attendance, the Court considered those concerns capable of being addressed by attendance undertakings.

It therefore replaced the full-deposit condition with a 20% deposit and conditions requiring the petitioner’s attendance.

The petitioner was directed to deposit 20% of the cheque amount within four weeks, file an undertaking within one week to comply with the conditions, and undertake to attend every hearing before the Appellate Court, whether or not his advocate is present.