# Smt. Manju Tiwari v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 159
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-04
- **Case number:** Application U/S 482 No. 8481 of 2020
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-manju-tiwari-v-state-of-u-p-anr-45776
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 389 - Stay of compensation
pending appeal - Appellate court have power to
stay conviction or compensation, pending
appeal - such power should be exercised only in
exceptional circumstances where failure to stay
the conviction, would lead to injustice and
irreversible consequences

Husband of the applicant died, who was the sole
earning member and financial condition of the
applicant is very weak - Applicant does not have
any source of income & is not in a position to
deposit 20% of compensation amount. Held -
Since the appeal of the applicant has been
admitted for final hearing and she was released
on bail and the applicant is hopeful of
succeeding in the appeal, it is justifiable to keep
the amount of penalty in abeyance till disposal
of appeal. (Para 10)
 Application disposed off. (E-5)

List of case cited :.

## Text

6 All. Smt. Manju Tiwari Vs. State of U.P. & Anr.
159
complaint. Therefore, the order impugned
i.e. order of taking cognizance is set aside
and the learned trial court shall proceed the
case as a complaint case under Chapter XV
of the Code of Criminal Procedure.

12. With these observations, the
application stands disposed off.
----------
(2020)06ILR A159
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 8481 of 2020

Smt. Manju Tiwari ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Gyanendra Pratap Singh

Counsel for the Opposite Parties:
A.G.A.

Criminal Law - Criminal Procedure Code,
1973 - Section 389 - Stay of compensation
pending appeal - Appellate court have power to
stay conviction or compensation, pending
appeal - such power should be exercised only in
exceptional circumstances where failure to stay
the conviction, would lead to injustice and
irreversible consequences

Husband of the applicant died, who was the sole
earning member and financial condition of the
applicant is very weak - Applicant does not have
any source of income & is not in a position to
deposit 20% of compensation amount. Held -
Since the appeal of the applicant has been
admitted for final hearing and she was released
on bail and the applicant is hopeful of
succeeding in the appeal, it is justifiable to keep
the amount of penalty in abeyance till disposal
of appeal. (Para 10)
 Application disposed off. (E-5)

List of case cited :.

1. Manoj Kumar Vishwakarma Vs St. of U.P. &
anr. (2019) 10 ACC (SH) 329

2. Rama Narang Vs Ramesh Narang (1995) 2
SCC 513

3. Ravikant S. Patil Vs Sarvabhouma S. Bagali
reported in (2007) 1 SCC 673

(Delivered by Hon'ble Mrs. Manju Rani Chauhan, J.)

1. Heard Sri Gyanedra Pratap Singh,
learned counsel for the applicant and Mr.
P.K. Shahi, learned A.G.A assisted by Mr.
Madnesh Prasad Singh, learned counsel for
the State as also perused the record.

2. Learned counsel for the applicant
and learned A.G.A. for the State agree that
the present application may be disposed of
at this stage without issuing notice or
calling for any further affidavits in view of
the order proposed to be passed today.

3. This application 482 Cr.P.C. has
been filed to quash the judgment and order
dated 24.01.2020 passed by the District and
Sessions Judge, Lalitpur in Criminal
Appeal No. 15 of 2019 (Smt. Manju Tiwari
Vs. State of and another), which has been
filed against the judgment and order dated
12.03.2019 passed by the Additional Chief
Judicial Magistrate, Lalitpur, under Section
138 N.I. Act, Police Station-Lalitpur,
District-Lalitpur.
Under
the
impugned
judgment, the appellate court has issued
recovery notice for recovery of interim
compensation amount.

4. It has been submitted by learned
counsel for the applicant that a complaint
was filed by the opposite party no.2 against
160 INDIAN LAW REPORTS ALLAHABAD SERIES
the applicant under Section 138 N.I. Act
before the concerned court below. On the
complaint filed by the opposite party no.2,
the concerned court below took cognizance
and summoned the applicant for facing the
trial. After
conclusion
of
trial,
the
concerned court below vide judgment and
order dated 12.03.2019 convicted the
applicant under Section 138 N.I. Act for six
months simple imprisonment and awarded
fine of Rs. 4,00,000/- and in default of
payment of fine one month additional
simple imprisonment. The concerned court
below has also clarified that out of total
amount of fine/compensation of Rs. 4 lacs,
Rs. 3.90 lacs has been directed to be paid in
favour of opposite party no.2. Feeling
aggrieved by the judgment and order of the
trial court dated 12.03.2019, the applicant
preferred Criminal Appeal No. 15 of 2019
before the Sessions Judge, Lalitpur on
11.04.2019
along
with
interim
bail
application. Thereafter, the Appellate Court
vide order dated 11.04.2019 has admitted
the appeal and released the applicant on
bail with furnishing two sureties of Rs.
25,000/- and further directed the applicant
to deposit 50% amount of total fine
imposed by the trial court. Subsequently,
against the order dated 11.04.2019 passed
by the Appellate Court, the applicant
approached before this Court and the coordinate Bench of this Court has modified
the order dated 11.04.2019 passed by the
Appellate Court to the extent that applicant
would deposit 20% of total fine imposed by
the trial court. Taking into account the
order passed by the co-ordinate Bench of
this Court, the Appellate Court vide order
dated 24.01.2020 directed the applicant to
deposit 20 % of the compensation amount.

5. It has further been submitted by learned
counsel for the applicant that husband of the
applicant died in jail on 11.11.2019 during
medical treatment and the applicant is also
continuously ill and undergoing treatment after
death of her husband. Therefore, she is not in a
position to deposit 20% of compensation
amount. In such circumstances, considering the
condition of the applicant, till disposal of
appeal, the amount of fine/penalty, which is to
be paid by the applicant may be kept in
abeyance. In support of his contention, learned
counsel for the applicant has placed reliance
upon the judgment of this Court in the case of
Manoj Kumar Vishwakarma vs. State of U.P.
and another reported in 2019(10) ACC (SH)
329, wherein, it has been held that since the
appeal was admitted for final hearing and the
applicant is hopeful of being successful in the
appeal, it is justifiable to keep the amount of
penalty in abeyance till disposal of appeal.

6. Per contra, learned A.G.A. for the State
has conceded the submission advanced by the
learned counsel for the applicant and submitted
that in the special circumstances, wherein the
appeal has been admitted for final hearing and it
is hopeful that the applicant may succeed in the
appeal, it is justifiable to keep the amount of
penalty/fine in abeyance till the disposal of
appeal.

7. I have considered the argument of the
counsel for the applicant as well as learned
A.G.A. for the State. Provision of Section 389
of Cr.P.C is reproduced as under:-

"389. Suspension of sentence
pending the appeal; release of appellant
on bail.

(1) Pending any appeal by a
convicted person, the Appellate Court
may, for reasons to be recorded by it in
writing, order that the execution of the
sentence or order appealed against be
suspended
and, also,
if
he
is
in
confinement, that he be released on bail,
or on his own bond.
6 All. Smt. Manju Tiwari Vs. State of U.P. & Anr.
161

(2) The power conferred by this
section on an Appellate Court may be
exercised also by the High Court in the
case of an appeal by a convicted person
to a Court subordinate thereto.

(3) Where the convicted person
satisfies the Court by which he is
convicted that he intends to present an
appeal, the Court shall,-

(i) where such person, being on
bail, is sentenced to imprisonment for a
term not exceeding three years, or

(ii) where the offence of which
such person has been convicted is a
bailable one, and he is on bail, order that
the convicted person be released on bail,
unless there are special reasons for
refusing bail, for such period as will afford
sufficient time to present the appeal and
obtain the orders of the Appellate Court
under sub- section (1); and the sentence of
imprisonment shall, so long as he is so
released on bail, be deemed to be
suspended.

(4)
When
the
appellant
is
ultimately sentenced to imprisonment for a
term or to imprisonment for life, the time
during which he is so released shall be
excluded in computing the term for which
he is so sentenced."

8. A Bench of three Hon'ble Judges of
Apex Court in the case of Rama Narang v.
Ramesh Narang reported in (1995) 2 SCC
513 wherein the Apex Court has held that
in certain situation the order of conviction
can be executable and in such a case the
power under Section 389(1) of the Code
could be invoked. The ratio of the judgment
can be traced out, which is extracted
below:-

"In certain situations the order of
conviction can be executable, in the sense it
may incur a disqualification as in the
instant case. In such a case the power
under Section 389 (1) of the Code could
be invoked. In such situations the
attention of the appellate court must be
specifically invited to the consequences
which are likely to fall to enable it to apply
its mind to the issue since under Section
389(1) it is under an obligation to support
its order for reasons to be recorded by it in
writing. If the attention of the Court is not
invited to this specific consequence which
is likely to fall upon conviction how can it
be expected to assign reasons relevant
thereto? No one can be allowed to play
hide and seek with the Court; he cannot
suppress the precise purpose for which he
seeks suspension of the conviction and
obtain a general order of stay and then
contend that the disqualification has ceased
to operate."

9. Again three Hon'ble Judges Bench
of the Apex Court in Ravikant S. Patil v.
Sarvabhouma S. Bagali reported in (2007)
1 SCC 673, held that though the power to
suspend an order of conviction, apart from
the order of sentence, is not alien to Section
389(1) of the Code, its exercise should be
limited to very exceptional cases. In the
paragraph nos.11 and 12.3 has held as
follows:-

"11) It deserves to be clarified
that an order granting stay of conviction is
not the rule but is an exception to be
resorted to in rare cases depending upon
the facts of a case. Where the execution of
the sentence is stayed, the conviction
continues to operate. But where the
conviction itself is stayed, the effect is that
the conviction will not be operative from
the date of stay. An order of stay, of
course, does not render the conviction
non-existent, but only non-operative. Be
that as it may. Insofar as the present case is
162 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned,
an
application
was
filed
specifically seeking stay of the order of
conviction specifying that consequences if
conviction was not stayed, that is, the
appellant would incur disqualification to
contest the election. The High Court after
considering the special reason, granted the
order staying the conviction. As the
conviction itself is stayed in contrast to a
stay of execution of the sentence, it is not
possible to accept the contention of the
respondent that the disqualification arising
out of conviction continues to operate even
after stay of conviction.

12.3) In K.C. Sareen vs. CBI,
Chandigarh, (2001) 6 SCC 584, it was held
that though the power to suspend an order
of conviction, apart from the order of
sentence, is not alien to Section 389(1) of
the Code, its exercise should be limited to
very exceptional cases. It was further held
that merely because the convicted person
files an appeal to challenge his conviction,
the
court
should
not
suspend
the
operation of the conviction and the court
has a duty to look at all aspects including
the
ramifications
of
keeping
such
conviction in abeyance. The Bench also
noted that the evil of corruption has
reached a monstrous dimension. While
declining the prayer of the appellant for
grant of an order of stay of conviction, the
Bench observed that when conviction is on
a corruption charge against a public
servant, the appellate court should not
suspend the order of conviction during the
pendency of the appeal, even if the sentence
of imprisonment is suspended. The Bench
further observed that it would be a sublime
public policy that the convicted public
servant is kept under disability of the
conviction in spite of keeping the sentence
of imprisonment in abeyance till the
disposal of the appeal or revision. These
observations would equally apply when a
prayer for stay of order of conviction is
made so as to remove the disability to
contest an election except, as already
noted, in a very exceptional and rare case.

10. A careful reading of the aforesaid
judgments of the Apex Court, while
recognizing the power to stay conviction or
compensation, have cautioned and clarified
that such power should be exercised only in
exceptional circumstances where failure to
stay the conviction, would lead to injustice
and irreversible consequences. In the
present case, the husband of the applicant
died, who was the sole earning member of
the family and financial condition of the
applicant is very weak. The applicant does
not have any source of income. Therefore,
in such situation, the applicant is not in a
position to deposit 20% of compensation
amount. Since the appeal of the applicant
has been admitted for final hearing and she
was released on bail and the applicant is
hopeful of succeeding in the appeal, it is
justifiable to keep the amount of penalty in
abeyance till disposal of appeal.

11. Having regard to the facts and
circumstances of the case, the amount of
penalty/fine imposed by the Appellate
Court vide order dated 24.01.2020 shall be
kept in abeyance till the disposal of the
appeal. It is further directed that the
Appellate Court may decide the appeal, in
accordance with law, preferably within a
period of four months from the date of
production of a certified copy of this order,
if there is no other legal impediment.

12. With the aforesaid observations,
this application is finally disposed of.

13. It is made clear that any
observations made hereinabove, shall not
affect the right or claim of any of the
6 All. Satish Mishra & Ors. Vs. State of U.P. & Ors.
163
parties in the appeal pending before the
Appellate Court.
----------
(2020)06ILR A163
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2020

BEFORE
THE HON'BLE AJAY BHANOT, J.

Application U/S 482 No. 11114 of 2005

Satish Mishra & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicants:
Sri C.K. Parekh, Sri M.A. Ansari

Counsel for the Respondents:
A.G.A., Sri A.K. Singh, Sri Prashant Singh
Soni, Sri Prashant Singh 'Som'

A. Criminal Law - Code of Criminal
Procedure,1973-Section
482
-
Indian
Penal Code,1862-Sections 392,504,506quashing of-complaint-trial court neglected to
make a searching enquiry into the veracity of
the allegations and credibility of witnessescriminal trial cannot be set in motion in a
cursory manner-the dispute is of civil natureconcealment of material facts while instituting
the criminal proceedings just to harass the
applicant is established-A litigant at his own
whim cannot invoke the authority of the
Magistrate-A really grieved person with clean
hands must have access to invoke the said
power-the conduct of the complainant has been
that of a defaulting borrower who has abused
the process of law to defeat his creditors-the
complaint clearly mislead the court as it was
based on false and frivoulous story.(Para 43,44,
45 ,63, 64,65 to 70)

B. In an agreement of hire purchase, the
purchaser remains merely a trustee/bailee
on
behalf
of
the
financier/financial
institution and owenership remains with the
latter.Thus, in case the vehicle is seized by
the financier, no criminal action can be
taken against him as he is repossessing
the goods owned by him.(Para 54 to 60)

In the instant case, complainant acquired
the bus with financial assistance rendered
by the financial institution. The agreement
between the parties was a hire purchase
agreement. The complainant defaulted in
the payment of instalments. The bus was
seized by the financier upon the default.
This led to the criminal complaint against
the financier.(Para 7 to 11)

The application is allowed. (E-6)

List of Cases Cited:-

1. Rajiv Thapar & ors. Vs Madan Lal Kapoor
(2013) 3 SCC 330

2. Y. Abraham Ajith & ors. Vs Inspector of Police
Chennai & anr. (2004) 8 SCC 100

3. Sardar Trilok Singh & ors. Vs Satya Deo
Tripathi, AIR (1979) SC 850

4. K.A. Mathai @ Babu Vs Kora Bibbikutty
(1996) 7 SCC 212

5. Charanjit Singh Chadha Vs Sudhir Mehra
(2001) 7 SCC 417

6. K.L. Johar & Co. Vs Dy. Commercial Tax
Officer, AIR (1965) SC 1082

7. Anup Sarmah Vs Bhola Nath Sharma & ors.
(2013) 1 SCC 400

8. Priyanka Srivastava & anr. Vs St. Of U.P.&
ors. (2015) 6 SCC 287

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The application under Section 482
has been instituted with the following
prayer:-

"Quash entire proceedings along
with complaint of Criminal Case No. 1635
(7635) of 2004, Pradeep Kumar Singh Vs
Ashish Pandey & others (initiated on the