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Kerala High Court · body

2019 DIGILAW 229 (KER)

Nissar Puthalath v. Muhammed. C. K.

2019-03-05

MARY JOSEPH

body2019
ORDER : 1. This application is filed seeking to set aside Annexure-A3 order passed by Court of Sessions, Kozhikode (for short the Court below) in C.M.P. No.118 of 2019 in Crl.Appeal No.46 of 2019. Annexure-A3 order was passed by the aforesaid court in an application filed as C.M.P. No.118 of 2019 under Section 389(1) Cr.P.C. The court concerned while allowing the application by order dated 25.1.2019 has directed the petitioner to execute a bond for Rs.1,00,000/- with two solvent sureties each for the like sum to the satisfaction of the trial court and deposit 20% of the compensation amount. The petitioner is aggrieved by the direction in the order to deposit 20% of the compensation amount, as condition precedent to get the execution of the sentence suspended. 2. According to Sri.Nirmal.S, the learned counsel, the Court below is highly unjustified in passing an order of the nature. The learned counsel has drawn the attention of this Court to Section 389 Cr.P.C to contend that the only condition that could be imposed by the appellate court under the provision while suspending the sentence was to direct the petitioner to execute a bond with two solvent sureties each for the like sum to the satisfaction of the court. According to him, imposition of other conditions are not contemplated under Section 389(1) Cr.P.C while exercising the power to suspend the execution of the sentence. It is contended that, deposit of 20% of the compensation/fine amount was directed by Section 148, newly introduced into the original Negotiable Instruments Act, 1881 (for short 'N.I.Act') by the N.I Amendment Act, 2018 (Act 20 of 2018). According to him, Section 148 was brought into the Act with effect from 01.09.2018 and it contemplates exercise of discretion by the court concerned while passing a separate order with reasons. According to the learned counsel, the word used by the legislature in the provision being ‘may’, the deposit contemplated under the provision is not mandatory and therefore, the appellate courts ought not to have insisted for that in all appeals. According to the learned counsel, the legislature has purposefully omitted to incorporate the word 'shall' in the provision and therefore jurisdiction under Section 148 N.I Act is not meant to be exercised mandatorily in all prosecutions. According to the learned counsel, the legislature has purposefully omitted to incorporate the word 'shall' in the provision and therefore jurisdiction under Section 148 N.I Act is not meant to be exercised mandatorily in all prosecutions. It is further contended by the learned counsel that sub-section (2) of Section 148 N.I Act provides that the amount referred to in sub-section (1) thereof 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 satisfactory reasons for not making the deposit within 60 days being shown by the appellant. According to the learned counsel, since there is provision for granting time for making the deposit as directed under sub-section (1), the court below ought not to have incorporated the direction to deposit the amount while an order to suspend the execution of the sentence being passed. The direction must have been issued by an independent order passed strictly under Section 148 N.I.Act. According to the counsel, in the case on hand it was not by a separate order Court of Sessions, Kozhikode has directed the petitioner to deposit 20% of the compensation amount but while suspending the execution of sentence. It is the contention of the learned counsel that the condition envisaged under Section 148 N.I.Act is not meant to be imposed by a court while issuing an order for suspension of execution of sentence under sub-Section (1) of Section 389 Cr.P.C. The learned counsel has also contended that the provisions brought in by Amendment Act, 2018 were incorporated in Chapter XVII of the original N.I Act under the head “penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts” and the deposit of the amount envisaged under the provision is penalty and therefore, is violative of Article 20 of the Constitution of India. Accordingly the learned counsel canvassed for setting aside the part of the order directing him to make deposit of 20% of the amount. Since the petition was heard in limine and in view of the nature, the order proposed to be passed carry, notice to the 1st respondent was dispensed with. 3. Accordingly the learned counsel canvassed for setting aside the part of the order directing him to make deposit of 20% of the amount. Since the petition was heard in limine and in view of the nature, the order proposed to be passed carry, notice to the 1st respondent was dispensed with. 3. The order which incorporates the direction sought to be set aside was passed under Sub-section (1) of Section 389 Cr.P.C. Therefore, it is apposite to extract the provision hereinunder for easy reference: “(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, on his own bond:” 4. It is true that imposition of a condition separate from the direction to execute a bond is not prescribed therein. 5. Section 148, newly brought into the N.I Act by Amendment Act, 2018 is also extracted hereunder for easy reference: “148. Power of Appellate Court to order payment pending appeal against conviction (1) Notwithstanding anything 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 per cent. of the fine or compensation awarded by the trial Court: Provided that the amount payable under this subsection 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. (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.’’. 6. Going by the provision, it is seen that it starts with a non obstante clause i.e., “notwithstanding anything contained in the Code of Criminal Procedure, 1973”. Therefore the direction issued by the provision to call for deposit of such sum, which shall be minimum of 20% of the fine or compensation awarded by the trial court, needs to be ordered in addition to what has been stated under Section 389(1) Cr.P.C. Therefore, in prosecution under Section 142 N.I.Act, while suspending the execution of sentence under Section 389(1) Cr.P.C., over and above the stipulation therein directing execution of bond, the additional direction as contemplated under Section 148 of the N.I.Act also must be imposed. 7. Section 148 of the N.I.(Amendment) Act, 2018 does not say that the direction to pay the sum, which is the minimum of 20% of the fine or compensation shall be paid as condition while suspending execution of sentence. But going by Section 148 and sub sections thereunder, it can be seen that the consequence of non deposit of the amount as directed by sub section (1) and the manner in which the amount shall be realised are not stated thereunder. It is stated in sub section 3 that 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. Therefore the deposit is liable to be made immediately after issuing the direction. It is stated in sub section 3 that 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. Therefore the deposit is liable to be made immediately after issuing the direction. Otherwise the court may not be in a position to release it to the complainant, when he/she has applied for the same. In the absence of a default provision or in the absence of any provision directing the realisation of the amount, this Court finds that the same could be imposed at the appellate stage, during exercise of jurisdiction under Section 389(1) Cr.P.C. by the appellate court to suspend the execution of the sentence imposed by the judgment appealed against. 8. It is the further contention of the learned counsel that the direction to deposit 20% of the compensation amount was made in a prosecution launched by the 1st respondent as C.C. No.53 of 2014, four years prior to the incorporation of the amended provision into the N.I.Act and the provision was incorporated under Chapter XVII dealing with “penalty”, issuing of such a direction to the petitioner to deposit a minimum of 20% of the compensation amount violates Article 20 of the Constitution of India. According to him, the amendment brought in by way of the Amendment Act, 2018 being of the nature of affecting the rights of a party and not procedural in nature, cannot have any retrospective operation, so as to apply to prosecutions launched in the year 2014. It is therefore necessary to have a scrutiny of the provision, in that background which is already extracted herein above. 9. The provision is meant to be applied at the appellate stage when an appeal is preferred from a judgment convicting the accused and sentencing him. In the case on hand, it is true that the prosecution was initiated in the year 2014. The judgment in C.C. No.53 of 2014 was passed on 28.12.2018. The appeal was preferred therefrom before Court of Sessions, Kozhikode as Criminal Appeal No.46 of 2019 in the year 2019. As already stated, the new provision was brought into the N.I Act on 02.08.2018 with effect from 01.09.2018. Therefore prior to the filing of the appeal on hand the new provision was brought into the N.I.Act. The appeal was preferred therefrom before Court of Sessions, Kozhikode as Criminal Appeal No.46 of 2019 in the year 2019. As already stated, the new provision was brought into the N.I Act on 02.08.2018 with effect from 01.09.2018. Therefore prior to the filing of the appeal on hand the new provision was brought into the N.I.Act. As already stated, the provision is meant to be invoked at the appellate stage while exercising jurisdiction to suspend the sentence. At that juncture that minimum of 20% of the compensation amount was directed to be paid by the accused to the complainant. There is also provision for refund of the amount with interest to the complainant when the appeal fails. The provision is only incorporated, intended to be operated as a safeguard to curb continuation of non-mertitorious prosecutions. Therefore, there is no basis for the argument of the learned counsel that Section 148 N.I Act is hit by Article 20 of the Constitution of India. There is no basis for the argument advanced that jurisdiction under Section 148 N.I Act was applied in the case on hand retrospectively. 10. The further argument was that since the new provision was incorporated by way of Amendment Act, 2018 under Chapter XVII, under the heading “penalty”, the payment of an amount to the minimum of 20% directed by the provision can have the character of a penalty and the petitioner herein would be prejudiced with the imposition of the same at the appellate stage, appeal being continuation of the original prosecution. It is true that the provisions brought in by the Amendment Act have been incorporated under Chapter XVII under the heading 'penalty'. But, the deposit envisaged under Section 148 is a portion of the fine or compensation amount already imposed on the accused by the trial court after finding him guilty of the offence. It is not as if the accused was charged with a separate penalty or imposed with a direction to pay compensation in addition to the penalty already imposed by the trial court. The direction was to deposit the minimum of 20% or a sum higher out of the compensation amount already imposed by the trial court. Since the provision directing refund is also incorporated under Section 148 N.I Act, prejudice is unlikely to be caused to the accused. 11. The direction was to deposit the minimum of 20% or a sum higher out of the compensation amount already imposed by the trial court. Since the provision directing refund is also incorporated under Section 148 N.I Act, prejudice is unlikely to be caused to the accused. 11. The statements of objects and reasons of the legislature behind the incorporation of the amended provisions of the N.I.Act are also worthy to be dealt with and accordingly is extracted hereunder: “The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offences of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realise the value of the cheque. Such delays compromise the sanctity of cheque transactions. 2. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy.” 12. The amendment was brought into the N.I.Act in view of the receipt of several representations from the public including trading community relating to pendency of cheque dishonour cases. It was because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings that the new provisions have been brought into the Act by way of amendment, to check the same. It was because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings that the new provisions have been brought into the Act by way of amendment, to check the same. The injustice caused to the payee of a dishonoured cheque to spend considerable time and resources in court proceedings to realise the value of the cheque was also a reason behind the incorporation of the new provision in the Act. Therefore it is also clear from the objects and reasons that in order to put a check on easy filing of prosecutions, appeals and obtaining stay of proceedings that the new provision like Section 148 has been incorporated into N.I.Act, by way of N.I. (Amendment) Act, 2018. Therefore it is clear from the objects and reasons extracted supra that the jurisdiction contemplated under Section is meant to be invoked by the appellate court while exercising jurisdiction under Section 389(1) Cr.P.C. 13. The court below has correctly exercised the power and has passed the impugned order directing the petitioner to deposit 20% of the compensation amount within the time period stipulated therein. Interference of any nature is totally unwarranted. In the result, Crl.M.C. stands dismissed.