# Mohammad Javed Farooqui v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-05
- **Case number:** Application U/S 482. No. 5955 of 2024
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-javed-farooqui-v-state-of-u-p-anr-52215
- **Pages:** 6

## Headnote

Law-
(The
Bhartiya
Nagrik
Suraksha Sanhita, 2023-Section-528) (The
Negotiable Instrument Act, 1881-Section
148)- When Appellate Court considers the
prayer under Section 389 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 and 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-No
exceptional circumstances have been indicated
by the learned appellate court as to why it was
of the view that 20% of the total fine should not
be deposited meaning thereby that there were
no exceptional circumstances which were found
by the appellate court in not directing for
deposit of the 20% of the total fine. (Para 20,
21, 24 & 26)

Application dismissed. (E-15)

List of Cases cited:

## Text

7 All. Mohammad Javed Farooqui Vs. State of U.P. & Anr.
489
not
in
possession
of
the
informant/complainant and the same was
required as such the Hon'ble Apex took
note of the said fact and thereafter observed
that in the matter the investigation is
required.

26. In the present case, the certificate,
as required under Section 65B of the Act of
1872, and evidence i.e. CCTV footage is
available with the applicant, as observed
above.

27. Having considered the aforesaid,
this Court finds that the trial Court as also
the revisional Court have not committed
any illegality in passing the orders under
challenge and the trial Court has rightly
treated the application under Section 156(3)
Cr.P.C. filed by the applicant as a
'complaint
case'.
Accordingly,
no
interference in the matter is required and
being so the instant applicant having no
force is hereby rejected.
----------
(2024) 7 ILRA 489
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.07.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Application U/S 482. No. 5955 of 2024
Along With
Application U/S 482 No. 5927 of 2024

Mohammad Javed Farooqui ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ashok Kumar Singh

Counsel for the Opposite Parties:
G.A.
Criminal
Law-
(The
Bhartiya
Nagrik
Suraksha Sanhita, 2023-Section-528) (The
Negotiable Instrument Act, 1881-Section
148)- When Appellate Court considers the
prayer under Section 389 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 and 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-No
exceptional circumstances have been indicated
by the learned appellate court as to why it was
of the view that 20% of the total fine should not
be deposited meaning thereby that there were
no exceptional circumstances which were found
by the appellate court in not directing for
deposit of the 20% of the total fine. (Para 20,
21, 24 & 26)

Application dismissed. (E-15)

List of Cases cited:

1. Jamboo Bhandari Vs M.P. State Industrial
Development Corp. Ltd. & ors. in Criminal
Appeal No.2741 of 2023 decided on 04.09.2023.

2.Rakesh Ranjan Shrivastava Vs St. of Jhar. &
anr. - (2024) 4 SCC 419

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
applicant, Sri Anurag Verma, learned
Additional
Government
Advocate
appearing for respondent no.1 and Sri
Vimal Kumar, learned counsel, who files
Vakalatnama on behalf of respondents no.2
and 3 in both the petitions, which are taken
on record.

2. Learned counsels for the contesting
parties state that facts of Application U/s
482 Cr.P.C. (now Section 528 of Bharatiya
Nyaya Sanhita) No.5955 of 2024 and
490 INDIAN LAW REPORTS ALLAHABAD SERIES
Application U/s 482 Cr.P.C. (now Section
528 of Bharatiya Nyaya Sanhita) No.5927
of 2024 are one and the same and that both
the matters can be heard and decided
together.

3. Accordingly, the Court proceeds to
hear and decide both the matters together.
For convenience, the facts of Application
U/s 482 Cr.P.C. No.5955 of 2024 are being
taken into consideration.

4. Under challenge is the order dated
19.04.2024 passed in Criminal Appeal
No.111 of 2024 in re: Mohd. Javed
Farooqui vs. State of U.P. and others, a
copy of which is Annexure-1 to the
application, whereby upon an appeal filed
by the applicant/petitioner, the learned
court has required the appellant/applicant
herein, to deposit 20% of the total fine
imposed by the learned trial court within 30
days as a precondition for staying of the
sentence and realization of fine.

5. The argument of learned counsel
for the applicant is that the learned
appellate court has patently erred in law in
passing
the
order
impugned
dated
19.04.2024 to the extent it directs for
deposit of 20% of the total fine.

6. The contention is that when from
the merits of the case itself it emerges that
no cheque had been issued by the applicant
consequently there could not have been any
occasion of conviction of the applicant and
for that matter in the appeal filed by the
applicant, there could not be any occasion
for the appellate court to have directed for
deposit of 20% of the total fine imposed by
the trial court.

7. In this regard, reliance has been
placed on the judgment of the Hon'ble
Supreme Court in the case of Jamboo
Bhandari vs. M.P. State Industrial
Development Corporation Ltd. & others
passed in Criminal Appeal No.2741 of
2023 decided on 04.09.2023.

8. Placing reliance on the aforesaid
judgment of the Hon'ble Supreme Court in
the case of Jamboo Bhandari (supra) the
argument of learned counsel for the
applicant is that for the appellate court to
direct the appellant to deposit a certain
amount the exceptions should be spelt out
per which the amount is required to be
deposited. However, the order impugned
dated 19.04.2024 passed by the appellate
court does not spell out the exceptions
which have prevailed on the appellate court
per which it has directed the applicant to
deposit 20% of the amount of fine and as
such the order impugned merits to be setaside on this ground alone apart from the
order impugned reflecting patent nonapplication of mind to the relevant facts of
the case.

9. On the other hand, Sri Anurag
Verma, learned AGA as well as Sri Vimal
Kumar, learned counsel appearing for the
private respondents, have supported the
order impugned dated 19.04.2024 by
contending
that
it
is
only
in
the
exceptional circumstances that the amount
as required to be deposited under the
provisions
of
Section
148
of
the
Negotiable
Instrument
Act,
1881
(hereinafter referred to as the Act, 1881) is
not to be deposited keeping in view the
law laid down by the Apex Court in the
case of Jamboo Bhandari (supra) which
aspect of the matter has been considered
threadbare by the learned appellate court
while passing the order impugned and as
such there is no illegality or infirmity in
the said order.
7 All. Mohammad Javed Farooqui Vs. State of U.P. & Anr.
491

10. In support of his argument, Sri
Anurag Verma, learned AGA has placed
reliance on a recent judgment of Hon'ble
Supreme Court in the case of Rakesh
Ranjan
Shrivastava
vs.
State
of
Jharkhand and another - (2024) 4 SCC
419 wherein Hon'ble Supreme Court after
considering its earlier judgment in the case
of Jamboo Bhandari (supra) has again
considered the provisions of Section 148 of
the Act, 1881 and has held likewise.

11. Heard learned counsels for the
contesting parties and perused the records.

12. From the arguments as raised by
the learned counsels for the contesting
parties and perusal of records it emerges
that in a complaint no.7078 of 2019 filed
under Section 138 of the Act, 1881 in re:
Asif Ali Ahmed Siddiqui and another vs.
Mohd. Jawed Farooqui, the learned court
vide judgment and order dated 14.03.2024,
a copy of which is Annexure-13 to the
application, has convicted the applicant
herein under Section 138 of the Act, 1881.
Thereafter, by means of order dated
20.03.2024, which is part of Annexure-13
to the application, the applicant has been
directed to undergo imprisonment for a
period of one year and a fine of
Rs.15,00,000/- has also been imposed out
of which Rs.11,00,000/- has been directed
to
be
paid
to
the
complainant
as
compensation. In default of payment of
fine, the applicant was directed to undergo
3 months' simple imprisonment.

13. Being aggrieved, the applicant
filed an appeal. The learned appellate court
vide the order impugned dated 19.04.2024,
a copy of which is Annexure-1 to the
application, after considering the entire
facts and circumstances of the case has
stayed the operation of the impugned
judgment so far as it relates to the sentence
and realization of fine subject to the
condition
that
the
appellant/applicant
herein deposits 20% of the total fine
imposed by the learned trial court within 30
days.

14. Being aggrieved by the said order
to the extent that it has directed the
applicant to deposit 20% of the total fine,
the instant petition has been filed.

15. The argument of learned counsel
for the applicant is that the provisions of
Section 148 of the Act, 1881, so far as they
pertain to the appellant/applicant being
required to deposit a certain sum, starts of
with the word 'may'. It is contended that it
is the discretion of the learned appellate
court to have directed for deposit of fine
but the learned appellate court without
considering
the
entire
facts
and
circumstances of the case has directed for
deposit of 20% of the total fine imposed by
the learned trial court which would run
contra to the judgment of the Hon'ble
Supreme Court in the case of Jamboo
Bhandari (supra) and as such the order
impugned merits to the set-aside on this
ground alone.

16. The further argument, as advanced by
the learned counsel for the applicant, is that
there is no liability of the applicant to pay the
aforesaid amount which aspect of the matter has
not been considered by the learned appellate
court while passing the order impugned.

17. In this regard, the Court may consider
the provisions of Section 148 of the Act, 1881,
which, on reproduction, read as under:-

"148. Power of Appellate Court
to order payment poending appeal against
conviction. - (1) Notwithstanding anything
492 INDIAN LAW REPORTS ALLAHABAD SERIES
contained in the Code of Criminal
Procedure, 1973, 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 percent of the fine
or compensation awarded by the trial
Court:

Provided that the amount payable
under this sub-section shall be in addition
to any interim compensation paid by the
appellant under section 143A.

(2) The amount referred to in
sub-section (1) shall be deposited within
sixty days from the date of the order, or
within such further period not exceeding
thirty days as may be directed by the Court
on sufficient cause being shown by the
appellant.

(3) The Appellate Court may
direct the release of the amount deposited
by the appellant to the complainant at any
time during the pendency of the appeal:

Provided that if the appellant is
acquitted, the Court shall direct the
complainant to repay to the appellant the
amount so released, with interest at the
bank rate as published by the Reserve Bank
of India, prevalent at the beginning of the
relevant financial year, within sixty days
from the date of the order, or within such
further period not exceeding thirty days as
may be directed by the Court on sufficient
cause being shown by the complainant."

18. From perusal of Section 148 of
the Act, 1881, it emerges that in an appeal
filed 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
percent of the fine or compensation
awarded by the trial Court.

19. Admittedly, the applicant has
been convicted by the learned trial court
vide judgment and order dated 14.03.2024
and 20.03.2024. In the appeal filed by the
applicant, learned appellate court has
required a deposit of 20% of the total fine.
Sub-section (1) of Section 143 of the Act,
1881 gives the discretion to the Court to
deposit such sum which shall be minimum
of 20% of the fine or compensation which
aspect of the matter has been considered by
Hon'ble Supreme Court in the case of
Jamboo Bhandari (supra) wherein the
Hon'ble Court has held that non-deposit of
the said amount would only be there in
exceptional cases which warrants grant of
suspension of sentence without imposing
the condition of deposit of 20% of the
fine/compensation amount meaning thereby
that in case the appellate court is of the
view that 20% amount is not to be
deposited the same would fall within the
exceptional
circumstances
and
not
invariably as is the argument advanced by
the learned counsel for the applicant.

20. For the sake of convenience, the
relevant observation of Hon'ble Supreme
Court in the case Jamboo Bhandari
(supra) is reproduced 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 All. Mohammad Javed Farooqui Vs. State of U.P. & Anr.
493

21. As already indicated above, a
perusal of the judgment of Hon'ble
Supreme Court in the case Jamboo
Bhandari (supra) clearly indicates that the
Hon'ble Supreme Court has held that nondeposit of the amount under Section 148 by
the learned appellate court would be an
exception which has also been clearly spelt
out by the appellate while requiring nondeposit of the said amount of 20%. In the
present case, from perusal of the order
impugned as passed by the appellate court
dated 19.04.2024 it clearly emerges that no
exceptions have been spelt out by the
appellate court whereby it did not require
deposit of 20% of the fine and as such once
no exceptional circumstances have been
spelt out by the learned appellate court in
the order impugned clearly no error has
been committed by the appellate court
while requiring the deposit of the 20%
amount.

22. Again this aspect of the matter has
been considered by Hon'ble Supreme Court
in a recent judgment of Rakesh Ranjan
Shrivastava
(supra)
wherein
after
considering the earlier judgment Jamboo
Bhandari (supra) the Hon'ble Supreme
Court has held as under:-

"Even sub-section (1) of Section
148 uses the word "may". In the case of
Surinder Singh Deswal v. Virender Gandhi,
this Court, after considering the provisions
of Section 148, held that the word "may"
used therein will have to be generally
construed as "rule" or "shall". It was
further observed that when the Appellate
Court decides not to direct the deposit by
the accused, it must record the reasons.
After considering the said decision in the
case of Surinder Singh Deswal1, this
Court, in the case of Jamboo Bhandari v.
Madhya
Pradesh
State
Industrial
Development Corporation Limited & Ors.,
in paragraph 6, held thus:

"6. What is held by this Court is
that a purposive interpretation should be
made of Section 148 NI Act. Hence,
normally, the appellate court will be
justified in imposing the condition of
deposit as provided in Section 148.
However, in a case where the appellate
court is satisfied that the condition of
deposit of 20% will be unjust or imposing
such
a
condition
will
amount
to
deprivation of the right of appeal of the
appellant, exception can be made for the
reasons specifically recorded."

(emphasis by the Court)

23. In the case of Rakesh Ranjan
Shrivastava (supra) the Hon'ble Supreme
Court has also considered the use of the word
'may' as used in sub-section (1) of Section
148 of the Act, 1881 to hold that the use of
the word 'may' will have to be considered as
'shall' and also reiterated that when the
appellate court decides not to direct the
deposit by the accused it must record the
reasons i.e. the exceptional reason for nondeposit will have to be recorded.

24. As already indicated above, no
exceptional
circumstances
have
been
indicated by the learned appellate court as
to why it was of the view that 20% of the
total fine should not be deposited meaning
thereby that there were no exceptional
circumstances which were found by the
appellate court in not directing for deposit
of the 20% of the total fine.

25. As regards the argument of the
learned counsel for the applicant that there
is no liability of the applicant to pay the
amount, this argument will always be
considered by the appellate court while
deciding the appeal.
494 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Keeping in view the aforesaid
discussion, no case for interference is made
out. Accordingly, the application under
Section 482 Cr.P.C. is dismissed.
----------
(2024) 7 ILRA 494
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.07.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482. No. 6477 of 2024

Ravendra Shukla & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Arvind Kumar Pathak

Counsel for the Opposite Parties:
G.A., M.E. Khan, Shashi Kant Mishra

Criminal
Law
-
Criminal
Procedure
Code, 1973 - Section 482 - Indian Penal
Code, 1860 - Sections 419, 420, 504 &
406 - Application U/s 482 - for quashing
the impugned chargesheet & cognizance
order as well as entire criminal proceedings
filed against the applicants - court finds
that,
earlier,
in
year
2022,
both
the
applicants filed an Application u/section 482
Cr.P.C in which they have challenged the
same impugned orders arising out of same
criminal proceedings which are assailed in
the instant application - held, in view of law
laid down by the Hon'ble Apex court in
'Bhisham Lal Verma' case second Application
on the same grounds is not maintainable -
hence, indulgence in the matter is required -
accordingly, present Application is rejected.
(Para - 5, 15, 16, 17)

Application u/s 482 Dismissed. (E-11)

List of Cases cited:

1. Satendra Kumar Antil Vs, CBI & anr. (SLP to
Appeal (Crl.) No. 5191 of 2021,

2. Oswal Fats & oils Ltd. Vs Additional
Commissioner
(Admin.)
Bareilly
Division,
Bareilly & ors.(2010 4 SCC 728),

3. Kishore Samrite Vs St. of UP & ors.(2013 2
SCC 398),

4. Bhisham Lal Verma Vs St. of U P & anr.(2023
SCC online SC 1399).

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Shri Gurudutt Pandey,
learned counsel for the applicants, learned
A.G.A. for the State as well as Shri Shashi
Kant Mishra, learned counsel appearing for
opposite party No.2 and perused the record.

2. The applicants, namely, Ravendra
Shukla
and
Kumari
Mamta,
have
approached this Court seeking following
main reliefs:-

"(a) To allow the petition and
quash the impugned Charge sheet No. 221
of 2021 dated 09-06-2021 in Case Crime
no. 0037/2021 under Section 419, 420, 504
and 506 I.P.C, Police Station Cantt,
District Ayodhya along with Cognizance
Order dated 03-02-2022 passed by the
learned ACJM-I, Faizabad bearing Case
No. 258 of 2022, annexed here with as
Annexure Nos. 9 and 10 respectively and
set aside the Revision Order.

(b)
To
quash
the
entire
proceeding of Criminal Case No. 258 of
2022: State of U.P. vs Mamta and others
arises out of Crime No. 0037/2021 under
Section 419. 420, 504, and 506 1.P.C.
registered
at
Police
Station
Cantt,
Ayodhya.