Mukesh Bhatia v. Sanjeev Kumar Gulati & Anr

ORDER %

29.07.2013 In the above captioned two petitions, the statutory appeal of petitioner against his conviction and sentence of fine for the offence of Crl M.C. No. 2539/2013 Crl. M.C. No. 2540/2013 Page1 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. I under Section 138 of Negotiable Instruments Act, 1881 is pending before the AppellateCourt, which is now comingup for hearingon 3'"'' August, 2013. Vide impugnedorder of 14"^ August, 2013 in the above captioned two petitions, substantive sentence imposed upon petitioner has been suspended subject to deposit of fine. Since challenge to the impugned order in the above captioned two petitions is on identical ground, therefore, with the consent of both sides, these two petitions were taken up together for hearing and are being disposed of by this common order. Learned counsel for petitioner vehemently contends that if petitioner is called upon to deposit the fine of ?20,00,000/- (in Crl. M.C. No. 2539/2013) and ?22,00,000/- (in Crl. M.C. No. 2540/2013), then the purpose of filing the appeal becomes infructuous. This is disputed by respondents' counsel who submits that since the conviction suffered by petitioner is well merited, therefore, there is no justification to stay the order on sentencerequiring deposit of fine, as the compensation out of said fine is not being released to the respondents during the pendency of the appeal. •Petitioner's counsel had placed reliance upon Apex Court decision in S Haneef Vs. M. Shafath Ali Khan & Anr. 2 (2007) BC 25 to contend that when an appeal is preferred then normally in cases like the instant one, operation of the impugned order directingpayment of fine is stayed. A bare perusal of decision in S. Hanif (supra) shows that it has not laid down as the legal proposition that if an appeal is filed, then there is automatic stay of sentence of fine. Rather, the substantive sentence in appeal is generally stayed upon deposit of fine. During the course of Crl M.C. No.2S39/2013 Crl. M.C No. 2540/2013 Page 2 I hearing, it was vehemently urged by petitioner's counsel that since the service of statutory notice does not stand proved, therefore, it is a fit case for staying the deposit of fine, which is exorbitant. It was pointed out by learned counsel for respondents that respondent-complainant was not at all cross-examined on the aspect of non-service of statutory notice and infact, the statutory notice was served upon petitioner and the registered-AD card bears the signatures of petitioner. The crucial question of service or non-service of statutory notice is the aspect which would be gone into in appeal and is not required to be pre-judged at this stage. It is the discretion of the Court entertaining appeal whether to stay the deposit of fine or not. In the facts and circumstances of this case, impugned order directing petitioner to deposit fine does not suffer fi-om any palpable error. Accordingly, both these petitions are dismissed with direction to Appellate Courtto expeditehearingin the pending appeals. The above captioned petitions and the applications stand disposed of JULY 29, 2013 r (SUNIL GAUR) JUDGE Crl. M.C. No.2539/2013 CrI. M.C. No. 2540/2013 Page3

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 2539/2013 & CrI. M.A. No. 9822/2013 MUKESH BHATIA Petitioner Through: Mr. Banamati Shukla,Advocate versus SANJEEVKUMARGULATI&ANR. Respondents Through: Mr. V.P. Singh& Mr. Vineet Gandhi,Advocatesfor respondent No.l Mr. Mukesh Gupta, Additional Pubhc Prosecutorfor respondent No.2-State + CRL.M.C. 2540/2013 & Crl. M.A. No. 9824/2013 MUKESH BHATIA Petitioner Through: Mr. Banamati Shukla,Advocate versus SANJEEVKUMARGULATI&ANR. Respondents Through: Mr. V.P. Singh & Mr. Vineet Gandhi,Advocatesfor respondent No.l Mr. Mukesh Gupta, Additional PublicProsecutorfor respondent No.2-State CORAM: HON'BLE MR. JUSTICE SUNIL GAUR