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SURESHWAR THAKUR, J. (ORAL) –

1. The learned Judicial Magistrate First Class, Panipat, made a verdict of conviction, on 13.02.2019, upon the accused, one, Rajesh Kumar, upon CIS No. NACT-636 of 2017. Through a separate sentencing order, drawn on 14.02.2019, by the learned Magistrate, he proceeded to sentence the accused to undergo simple imprisonment, hence for a period of one year. Moreover, he also proceeded to sentence the accused to pay a fine of Rs. 11.50 Lac.

2. The afore verdict of conviction and consequent therewith sentence (supra), as became imposed upon the accused, became appealed before the learned Appellate Court concerned. The apposite appeal is yet subjudice before the learned Appellate Court. However, the learned Appellate Court on an application moved before it, under Section 389 Cr.P.C., proceeded to suspend the execution of sentence of imprisonment (supra), as became imposed upon the convict, by the learned JMIC concerned, subject to the convict furnishing his personal and surety bonds in the sum of Rs. 1 Lakh. The afore made order was pronounced, on 07.03.2019 (Annexure P-3).

3. However, on 14.09.2021, upon an application moved before the learned Appellate Court by the complainant, under, the provisions of Section 148 of the Negotiable Instruments Act, the learned Appellate Court proceeded to direct the appellant, to pay an amount of Rs. 2,30,000/-, hence comprising 20% of the compensation amount, as determined by the learned Magistrate, to the complainant, within a period of 30 days, from its making the afore order i.e. 14.09.2021.

4. Tritely put the order, as made by the learned Appellate Court, on the application (supra), as, preferred by the convict, did not, as a preemptory pre-condition, for its taking effect, inasmuch as its suspending the execution of sentence of imprisonment, as imposed upon him, by the learned JMIC concerned, rather insist upon his depositing 20% of the compensation amount.

5. Therefore, if the afore order was ridden with a vice of infirmity, and, was amenable for being challenged by the complainant before the competent Court concerned. Necessarily, for want of its being evidently challenged, it acquired finality and conclusivility, and, was not reviewable at the instance of the learned First Appellate Court.

6. It appears that the order made on 14.09.2021, is a discreet, and, tacit attempt, on the part of the learned Appellate Court, to proceed to impermissibly review, and scuttle the effect of the binding order, as, made by it, and, as is embodied in Annexure P-3, whereins, as a precondition for suspending the execution of sentence of imprisonment, as imposed, upon the convict, by the learned JMIC concerned, it did not proceed to order that 20% of the compensation amount be deposited within any specified time period before the Court concerned.

7. Therefore, it is ridden with a vice of infirmity, if so, and, even if assuming the order made on 14.09.2021, did hold some aura or tinge of validity, yet until and unless there was some evidently deterrent circumstances, prevailing upon the learned Appellate Court, as comprised in the appellant rather deliberately delaying the making of an expeditious decision, upon the appeal, as became preferred by him against the verdict of conviction, as, made upon him, by the learned Court, thereupon hence there was no occasion for the learned Appellate Court to make the order of 14.09.2021. Necessarily for evident non-existences thereof, it could not proceed to determine interim compensation nor it could proceed to make any interim directions upon the complainant. Even otherwise it was also legally incumbent upon the learned First Appellate Court, to order that in case there is allowing of the appeal, as preferred before it, by the accused-convict, thereupon the interim compensation, as determined, be restored or refunded to the accused – convict, by the complainant. However, the afore directions, as legally required to be made by the learned First Appellate Court, while being seized with an application, under Section 148 of the NI Act, are not existing, hence in the order, as, made on 14.09.2021. Therefore, on the afore ground also, it suffers from an infirmity.

8. Further there onwards, through an order made on 08.10.2021, for failure on the part of the appellant to make the afore payment, rather within the apposite stipulated period, he proceeded to order for launching of recovery proceedings against the convict – appellant, one Rajesh Kumar. The afore made order is also challenged before this Court.

9. As stated (supra), though, for the reasons (supra), finality is assignable, to Annexure P-3. Nonetheless in the larger interests of justice, and, for revering verdicts pronounced by the Hon'ble Apex Court, hence mandating, that upon the Appellate Court concerned, proceeding to suspend the execution of sentence of imprisonment imposed, upon the petitioner, by the learned Convicting Court, it becoming incumbent upon it, to direct the convict to deposit some portion of the cheque amount. Therefore, upon revering the afore mandate of law, as made by the Hon'ble Apex Court, and, also de hors finality being assignable to Annexure P-3, this Court deems it fit to proceed to interfere with it, and, also proceeds to set aside, the order made on 14.09.2021, and, on 08.10.2021, with a direction to the convict / petitioner herein to, within one month from today, deposit 15% of the cheque amount before the learned Appellate Court concerned.

10. Disposed of.

11. Pending application stands disposed of.

Order accordingly.

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