Neutral Citation No. - 2025:AHC:130177 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 23779 of 2025 Applicant :- Gaurav Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Devid Kumar Singh,Eishan Mehta,Prateek Rai Counsel for Opposite Party :- G.A.,Mateshshwar Shukla,Sunil Kumar Pandey Hon'ble Vikas Budhwar,J. 1. Counter affidavit filed by Sri Sunil Kumar Pandey, learned counsel for opposite party no.2 is taken on record. 2. Heard Sri Eishan Mehta learned counsel for the appellants as well as Sri S.K. Singh, learned AGA for the State and Sri Sunil Kumar Pandey, learned counsel for opposite party no.2. 3. A statement has been made by Sri Eishan Mehta, learned counsel for the appellant that as per instructions that he does not want to file any rejoinder affidavit and the application be decided on the basis of the documents available on record. 4. With the consent of the parties, the present application is being decided at the fresh stage. 5. This is an application filed U/ 528 BNSS for quashing/ modify the order dated 05.03.2025 passed by learned court of Sessions Judge, Bulandshahr in Criminal Appeal No. 51 of 2025 (Gaurav Misha vs. State of U.P. and another) under Section 138 of N.I. Act to the extend the same directs the applicant to pay 20 per cent of fine i.e. 2,10,000/-. 6. Learned counsel for the applicant has submitted that post lodging of a complaint U/s 138 of N.I. Act, the complaint case came to be registered bearing no. 2360 of 2024 and by virtue of the order dated 04.02.2025 the applicant came to be convicted by the court of Additional Civil Judge, (S.D) Judicial Magistrate, Khurja Bulandshahr whereby the applicant was directed to deposit the fine of Rs.10,50,000/- with rigorous imprisonment of three months. 7. Assailing the said order, the appellant preferred an appeal criminal appeal no. 51 of 2025 along with an application for stay of the conviction and sentence while recovery of the amount and the same came to be decided on 05.03.2025 staying the conviction and sentence and recovery of the amount subject to deposit of 20 per cent of the amount determined by the trial court as fine. 8. Questioning the part of the order, in so far as it directs 20 per cent of the total amount of fine determined by the trial court, the applicant has filed the present application. 9. Learned counsel for the applicant has submitted that the order dated 05.03.2025 passed in Criminal Appeal No. 51 of 2025 in so far as issues a blanket direction for deposit of 20 per cent compensation as determined by the court, cannot be sustained particularly when the case of the applicant as to whether it falls under the exceptional category or not, has not been considered. He seeks to rely upon the decision of the Hon'ble Apex Court in the case of Jamboo Bhandari vs. M.P. State Industrial Development Corporation LTD and ors, 2023 Live Law (SC) 776 and in the case of Muskan Enterprises and Another vs. State of Punjab and another, passed in Criminal Appeal No. 5491 of 2024 decided on 19, December, 2024. According to the counsel for the applicant, since the order in question does not consider the said aspect, thus order be set aside and the matter be remitted back to the court below to pass a fresh order. 10. Learned AGA as well as learned counsel appearing for opposite party no.2 submits that sword of conviction is hanging on the neck of the applicant. However they could not dispute the fact that there is no consideration of the case of the applicant whether it falls under the exceptional category or not in the light of the judgment in Jamboo Bhandari (Supra) and in the case of Muskan Enterprises (Supra). According to them the order be set aside and the matter be remitted back to the court below to pass a fresh order. 11. I have heard the submissions so made across the bar and perused the record carefully. 12. Apparently, post conviction of the applicant an appeal came to be preferred accompanied with a stay application for staying the conviction, sentence and recovery of the amount and the court below in exercise of the powers U/s 148 of N.I. Act it issued a direction to deposit 20 per cent of fine as determined by the trial court. Though as per section 148 of N.I. Act the powers is conferred with the appellate authority to order payment pending appeal against conviction but in view of the judgment in the case of Jamboo Bhandari (Supra) and in the case of Muskan Enterprises (Supra) there has to be a consideration with regard to the fact as to whether the case under exceptional category or not. In the case of Jamboo Bhandari (Supra) the Supreme Court observed as under: "6. What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, 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. 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 389 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. 8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea. 9. We disagree with the above submission. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not." 13. Since the said exercise is completely lacking and there has been no consideration with regard to the fact that as to whether the case of the applicant falls under exceptional category or not thus the order cannot be sustained. Accordingly, the application is disposed of with the following terms: a. The order dated 05.03.2025 passed by In-charge Sessions Judge, Bulandshahr in criminal appeal no. 51 of 2025 (Gaurav Mishra vs. State of U.P.) in so far as it directs to deposit 20 per cent of fine in exercise of the powers U/s 148 of N.I. Act of the amount determined by the trial court is set aside. b. The matter stands remitted back to the court below to pass a fresh order strictly in accordance with law. c. A statement has been made by the learned counsel for the parties as per the instruction received from their clients that they would not take any unnecessary adjournments thus it is provided that the the court shall pass a fresh order strictly in accordance with law without granting unnecessary adjournment and in case any adjournment is granted the should be in an exceptional circumstances that too not beyond 5 days at a stretch. Order Date :- 31.7.2025 C. MANI (Vikas Budhwar,J.) Digitally signed by :- CHANDRAMANI VERMA High Court of Judicature at Allahabad