Neutral Citation No. - 2025:AHC:47295 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 5311 of 2025 Applicant :- Rajeev Rathore Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nitinjay Pandey Counsel for Opposite Party :- G.A.,Narayan Singh(Kushwaha) Hon'ble Vikas Budhwar,J. 1. Heard Sri Nitinjay Pandey, learned counsel for the applicant, Sri Narayan Singh (Kushwaha) and Sri Indrajeet Singh Yadav, learned A.G.A. for the State. 2. A joint statement has been made by learned counsels for the parties that they do not propose to file any affidavit and the applicant be decided on the basis of the documents available on record. 3. This is an application under Section 528 of BNSS preferred by the applicant for quashing the impugned order dated 23-12-2024 passed by In-charge Session Judge/Additional Session Judge, Court No.1, Etah in Criminal Appeal No. 79 of 2024 (Rajeev Rathore Versus State of UP and others) to the extent by which condition has been imposed to deposit 20% of the total fine amount awarded by learned AC.J.M., Jalesar at Etah by its Judgment and order dated 04-12-2024 passed in Criminal Complaint Case No. 1954/2023 filed under section 138 of Negotiable Instrument Act. 4.Learned counsel for the applicant submits that a complaint stood lodged under Section 138 of N.I. Act by O.P. No.2 against the applicant, which culminated into an order dated 04.12.2024 of Addl. Chief Judicial Magistrate, Jalesar, Etah in Complaint Case No.1954 of 2023, Yaduveer Singh Chauhan Vs. Rajeev Rathore, whereby the applicant was convicted. The applicant is stated to have preferred Criminal Appeal along with an application purported to be under Section 374(2) and 389(1) of CrPC for staying the recovery of the compensation amount. Submission of the learned counsel for the applicant is that though in paragraphs- 4 to 10, it has been asserted that the applicant was not in a position to deposit 20% of the compensation amount under Section 148 of the N.I. Act, but the court below while deciding the said application has rejected the same by order dated 23.12.2024 passed in Criminal Appeal No.79 of 2024, Rajeev Rathore Vs. State of U.P. without considering the objections/ the constraints which have been alleged in the application for staying the recovery of the compensation amount. Learned counsel for the applicant has invited attention of the Court towards the judgment of the Hon'ble Supreme Court in Jamboo Bhandari Vs. M.P. State Industrial Development Corporation Ltd. & Ors., (2023) 10 SCC 446 as well as judgment of the Hon'ble Apex Court in the case of Muskan Enterprises and another vs. The State of Punjab & another, 2024(0) SC 1331. Submission of learned counsel for the applicant is that the Lower Appellate Court has proceeded as if it was in all circumstances a condition without considering the constraints of the applicant. Learned counsel for the applicant submits that his case falls within the exceptional category. 5. Sri Narayan Singh (Kushwaha), learned counsel for O.P. No.2, as well as Sri Indrajeet Singh Yadav, learned A.G.A. on the other hand submit that once a conviction stood recorded against the applicant and the appeal along with application for staying of the recovery had been preferred under Section 374(2) and 389(1) of CrPC, then the Court was within its jurisdiction to have proceeded to apply the principles under Section 148 of the N.I. Act while requiring the applicant to deposit 20% of the compensation amount. They however, do not dispute the fact that there happens to be judgments in the case of Jamboo Bhandari (supra) and Muskan Enterprises (supra), where it has been held that it is always open for the appellate court to consider whether any exceptional case, which warrants grant of suspension of sentence without imposing the condition of 20% of the fine of the compensation amount. They further submit that the matter be remitted back with a time bound direction to the court below to decide the said proceedings. 6. Having heard learned counsel for the parties and after perusing the record, the sole question, which arises for consideration is that whether in the case of Jamboo Bhandari (supra) and Muskan Enterprises (supra), the plight which has been exhibited in the application for staying the recovery of the compensation amount, the same would fall within the exceptional category or not or whether it was required for a direction to deposit 20%. The Court finds that there has been no discussion in this regard. 7. Accordingly, looking into the totality of the facts and also the stand taken by the parties, the order dated 23.12.2024 passed by the court of Sessions Judge, Etah in Criminal Appeal No.79 of 2024, Rajeev Rathore vs. State of U.P. is set aside. The matter is remitted back to the court below to decide the said proceedings with most expedition, say, within a period of one month from the date of production of the certified copy of the order. Since the applicant and opposite parties are represented through their counsel, thus it would be deemed that they have full knowledge about the order passed today. Learned counsels for the parties also assure that the parties shall not take any adjournment in any manner whatsoever. 8. The application is disposed of accordingly. Order Date :- 4.4.2025 N.S.Rathour (Vikas Budhwar, J) Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad