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Allahabad High Court · body

2019 DIGILAW 2753 (ALL)

Gyan Prakash Agarwal v. Babu Khan

2019-12-11

SURESH KUMAR GUPTA

body2019
JUDGMENT : 1. This revision has been filed against the impugned judgment and order dated 23.10.2019 passed by District and Sessions Judge, Hapur, in Criminal Appeal No. 98 of 2019 and impugned judgment and order passed by C.J.M./A.C.J.M., Hapur dated 23.9.2019 and order dated 25.9.2019 sentencing the accused appellant in case no. 34 of 2019 previously entered complaint no. 8496/2015 under Section 138 N.I. Act, P.S.Hapur Kotwali, DistrictHapur whereby the learned court below convicted and sentenced 1 years simple imprisonment for the offence under Section 138 N.I. Act and fine of Rs. 1 crore 20 lacs. 2. Heard Sri Mangla Prasad Rai, learned Senior Advocate assisted by Sri Vikas Srivastava, learned counsel for the revisionist, Sri Saumitra Dwivedi, learned counsel for the opposite party and the learned A.G.A. for the State. 3. Brief facts of the case are that the proceedings under Section 138 of the N.I. Act were initiated against the revisionist with the allegation that two cheque no. 789636 and cheque no. 789637 dated 20.7.2014 for a sum of Rs. 5050 lacs each was issued by the revisionist, which has been bounced. Respondent no. 1 filed complaint case before the A.C.J.M, under Section 138 N.I. Act. The proceeding of complaint case has ultimately resulted in order of conviction awarding of one year simple imprisonment together with imposition of fine of Rs. 1 crores 20 lacs. The amount of fine to be appropriated by paying Rs. 1 crore 15 lacs to the complainant (respondent no. 1) and balance of Rs. 5 lacs to be deposited to the State. 4. Aggrieved by this judgment dated 25.9.2019 the revisionist has preferred an appeal before Sessions Court. This appeal has been admitted on 23.10.2019 and the revisionist has been enlarged on bail under Section 389 Cr.P.C. Further order has been passed upon the application filed by the revisionist to stay the conviction order/sentence awarded by learned Magistrate meanwhile respondent no. 1 also filed the application under Section 148 of the N.I. Act with prayer that whole fine should not be stayed as mandate given in Section 148 of the N.I. Act. After hearing Sessions Court passed the order to furnish 30% of the fine awarded by the trial court deposited within 30 days. 5. 1 also filed the application under Section 148 of the N.I. Act with prayer that whole fine should not be stayed as mandate given in Section 148 of the N.I. Act. After hearing Sessions Court passed the order to furnish 30% of the fine awarded by the trial court deposited within 30 days. 5. Learned counsel for the revisionist filed revision on two grounds the first ground is to set aside the judgment and order dated 23.9.2018 passed by ACJM, Hapur and second prayer is to set aside the order dated 23.10.2018 passed by Sessions Court. 6. So far as regards first prayer upon which the revisionist has challenged the order dated 25.9.2019 by filing revision with submission that the judgment under revision is manifestly erroneous, not sustainable in law and learned trial court failed to appreciate the evidence adduced by the complainant (respondent). It is further submitted that learned trial court has passed its judgment without any relevant and cogent reason. It has further been submitted that execution of the cheque has not been proved. He further prayed to allow the revision and set aside the impugned judgment and order dated 25.9.2019 passed by ACJM, Hapur. On perusal of the record it appears that revisionist has already availed the statutory remedy before Sessions Court under Section 374 (3) Cr.P.C. by way of filing an appeal and thus the revisionist have full opportunity to review or reappreciate the evidence as adduced in trial court. The appeal is a continuation of the proceeding only such proceeding where parties were same and they are adversely affected by the judgment, then they may file appeal. As stated above as the revisionist has already availed opportunity of appeal before Sessions Court and appeal is admitted on 23.10.2019 before Sessions Court and presently appeal is pending before Sessions Court and every aspects of the case shall be tested during appeal. So by way of revision the revisionist cannot avail the parallel remedy. The revisionist cannot challenge the legality or impropriety of the order passed by the trial court and therefore, no remedy can be granted to the revisionist so far as regards to the first prayer for setting aside the judgment and order dated 25.9.2019 passed by the trial court.. 7. So far as regard the second prayer by way of revision is concerned, revisionist filed an application under Section 389 of the Cr. 7. So far as regard the second prayer by way of revision is concerned, revisionist filed an application under Section 389 of the Cr. P.C. for suspension of sentence and releasing him on bail, during pendency of appeal. Meanwhile, the respondent (complainant) also filed the application before Sessions Court with prayer to comply the provision as envisaged in Section 148 (i) of the N.I. Act. By considering the provisions of amended Section 148 of the N.I. Act, which has been amended by Amendment Act No. 20/2018, which came into force w.e.f. 1.9.2018, the appellate Court, while suspending the conviction and sentence under Section 389 of the Cr.P.C. Learned appellate court directed that the execution and suspension of conviction of appellant (revisionist) subject to deposit of 30% of the amount of compensation/fine awarded by the learned trial Court. 8. Learned counsel appearing on behalf of the revisionist vehemently submitted that in the present case as the criminal proceedings were initiated and the complaints were filed against the accused for the offence under Section 138 of the N.I. Act, prior to the amendment Act came into force, Section 148 of the N.I.Act, as amended shall not be applicable. It is further submitted by the learned Advocate appearing on behalf of the revisionist that the legal proceedings, whether civil or criminal, are to be decided on the basis of the law applicable on the date of the filing of the suit or alleged commission of offence by the trial Court or the appellate Court, unless the law is amended expressly with retrospective effect, subject to the provisions of Article 20 (1) of the Constitution of India. 9. It is further submitted by the learned counsel for the revisionist that as per Section 357 (2) of the Cr.P.C., no such fine is payable till the decision of the appeal. It is submitted that therefore also the first appellate Court ought not to have passed any order directing the appellants to deposit 30% of the amount of fine/compensation, pending appeal. In support of his above submission, learned Counsel has heavily relied upon the decision of this Court in the case of Vipin Kumar Vs. State of U.P. AIR ONLINE 2018 ALL 4035 in which this Court held the right of appeal is statutory right available to accused and that deposit of such amount cannot be made a condition precedent for admission of appeal. State of U.P. AIR ONLINE 2018 ALL 4035 in which this Court held the right of appeal is statutory right available to accused and that deposit of such amount cannot be made a condition precedent for admission of appeal. It has also been held that ends of justice would be met if part of the order which directs furnishing of bank guarantee to the extent of 25% is modified and substituted with a direction to furnish personal bond and security in the form of surety of like amount to the extent of 25% of the amount. 10. Learned counsel for the revisionist also submitted that once the appeal is admitted under the provisions contained under Section 357 (2) of the Code of Criminal Procedure, there shall be an automatic stay of the condition to deposit fine and that the conditions imposed by the appellate court in that regard is without jurisdiction. 11. Learned counsel for the revisionist placed reliance upon a decision of Hon'ble Apex Court in that Dilip S. Dhanukar v. Kotak Mahindra Bank, reported in (2007) 6 SCC 528 . Honble Apex Court interpreted the provisions of Section 357 (2) Cr.P.C., which has bee quoted below: “73. (i) In a case of this nature, Sub-Section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when Appellant was directed to pay compensation; (ii) The Appellate Court, however, while suspending the sentence, was entitled to put the appellant on terms. However, no such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right; (iii) The amount of compensation must be a reasonable sum; (iv) The Court, while fixing such amount, must have regard to all relevant factors including the one referred to in Sub-Section (5) of 357 of the Code of Criminal Procedure; (v) No unreasonable amount of compensation can be directed to be paid. 12. The Hon'ble Apex Court has clarified that right of appeal is statutory right available to accused and that deposit of such amount cannot be made a condition precedent for admission of appeal. The Court has further clarified that appellate court shall be at liberty to put the appellant to terms which has to be reasonable and fair. 12. The Hon'ble Apex Court has clarified that right of appeal is statutory right available to accused and that deposit of such amount cannot be made a condition precedent for admission of appeal. The Court has further clarified that appellate court shall be at liberty to put the appellant to terms which has to be reasonable and fair. The appellate court therefore while admitting the appeal and staying sentence has jurisdiction to put the appellant to terms which are reasonable and fair. 13. On account of the above submission and relying upon the aforesaid decision learned counsel for the revisionist prayed to allow the present revision and further prayed to quash and set aside the impugned order passed by the appellate court by which the revisionists have been directed to deposit 30% of the amount of the compensation/fine considering the provisions of Section 148 N.I. Act as amended. 14. Learned counsel for the respondent submitted that contention of the learned counsel for the revisionist has no substance. It is submitted that first of all amendment in Section 148 of the N.I. Act is procedural in nature and therefore there is no question of applying the same retrospectively. It is further submitted that as such no vested right of the appeal of the appellants has been taken away or affected by amendment in Section 148 of the N.I. Act. It is submitted that in the present case, admittedly, the appeals were preferred after the amendment in Section 148 of the N.I. Act came into force and therefore Section 148 of the N.I. Act, as amended, is rightly invoked/applied by the learned first appellate Court. It is submitted that therefore the amendment so brought in the Act by insertion of Section 148 of the N.I. Act is purely procedural in nature and not substantive and does not affect the vested rights of the appellants, as such, the same can have a retrospective effect and can be applied in the present case also. It is vehemently contended that after amendment in Section 148 of the N.I. Act the provisions of Section 357 (2) Cr.P.C. shall not be applicable. 15. Before arriving at any conclusion, I want to discuss the object behind the amendment made in Section 148 of the N.I. Act. It is vehemently contended that after amendment in Section 148 of the N.I. Act the provisions of Section 357 (2) Cr.P.C. shall not be applicable. 15. Before arriving at any conclusion, I want to discuss the object behind the amendment made in Section 148 of the N.I. Act. With the objective of reducing delay in proceedings pertaining to dishonour of cheques and to provide interim relief to the payee in such cases, the Negotiable Instruments (Amendment) Bill of 2017 was tabled before the Lok Sabha. The Central Government has been receiving several representations from the public, including the trading community, relating to the pendency of cheque bounce cases. The same may be imputed to the delay tactics adopted by unscrupulous drawers of dishonoured cheques on account of the ease of 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. 16. As per the Statement of Objects and Reasons of the Bill of 2017, the Negotiable Instruments Act of 1881 is proposed to be amended 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”. Further, it is expected that “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. 17. In the wake of current scenario, The Negotiable Instruments (Amendment) Act, 2018 passed by both the Houses (Lok Sabha on July 23, 2018; Rajya Sabha on July 26, 2018; and notified on August 02, 2018) has come as a breather for the aggrieved Drawees. Nonpayment because of cheque dishonor contribute majorly towards business inconsistencies leading not only to an cash flow, but also chain of inconveniences/incalculable losses forced upon them involuntarily. 18. Further, delayed justice owing to lengthy court procedures add to the woes. Therefore, the Amendment Act aims to give potency in enforcing quick relief and to act as a deterrent for future cases by enhancing credibility of cheques as a negotiable instrument. 18. Further, delayed justice owing to lengthy court procedures add to the woes. Therefore, the Amendment Act aims to give potency in enforcing quick relief and to act as a deterrent for future cases by enhancing credibility of cheques as a negotiable instrument. Briefly, following are the key features of the latest 2018 amendment vide the added Sections 143A and 148: (a) Interim compensation to Drawee up to 20% of the cheque amount in case of either summary trial or summons case where the Drawer pleads not guilty; (b) In addition to the above amount, if the Drawer appeals against the compensation awarded by the trial court to the Drawee, the appellate court can further order minimum of 20% of the awarded amount to be deposited/released to the Drawee; and (c) In both (1) and (2), the amount is to be deposited within 60 days of the courts order, extendable by another 30 days subject to courts satisfaction. 19. A very pertinent feature of this interim compensation is that at the courts discretion it may be also recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973 implying that the courts have the power to issue a warrant for attachment and sale of any moveable property belonging to the offender (Drawer); or issue a warrant to the District Collector to realise the amount as arrears of land revenue from the moveable/immoveable property of the defaulter (Drawer). 20. Thus, the Drawer of the cheque is made liable to prosecution and partial payment upon dishonour of the cheque implying that the provisions are punitive as well as compensatory, that is, the punitive aspect leading to compensation. It can be ascertained that the Legislature has made a remarkable move by bringing this amendment in the interest of speedy justice. 21. The bill seek to achieve objective, introduce Amended Section 148 of the N.I. Act is as under: "148. It can be ascertained that the Legislature has made a remarkable move by bringing this amendment in the interest of speedy justice. 21. The bill seek to achieve objective, introduce Amended Section 148 of the N.I. Act is as under: "148. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under 138 of the N.I. Act, 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 143 A. (2) The amount referred to in subsection (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." 22. Every question raised by the revisionist in revision has already been settled by Hon'ble Apex Court in Surinder Singh Deswal @ Col. S. S. Deswal Vs Virender Gandhi AIR 2019 SC 2956 , the relevant paragraph nos. 8, 9 and 10 are quoted below: “8. It is the case on behalf of the appellants that as the criminal complaints against the appellants under Section 138 of the N.I. Act were lodged/filed before the amendment Act No. 20/2018 by which Section 148 of the N.I. Act came to be amended and therefore amended Section 148 of the N.I. Act shall not be made applicable. It is the case on behalf of the appellants that as the criminal complaints against the appellants under Section 138 of the N.I. Act were lodged/filed before the amendment Act No. 20/2018 by which Section 148 of the N.I. Act came to be amended and therefore amended Section 148 of the N.I. Act shall not be made applicable. However, it is required to be noted that at the time when the appeals against the conviction of the appellants for the offence under Section 138 of the N.I. Act were preferred, Amendment Act No. 20/2018 amending Section 148 of the N.I. Act came into force w.e.f. 1.9.2018. Even, at the time when the appellants submitted application/s under Section 389 of the Cr.P.C. to suspend the sentence pending appeals challenging the conviction and sentence, amended Section 148 of the N.I. Act came into force and was brought on statute w.e.f. 1.9.2018. Therefore, considering the object and purpose of amendment in Section 148 of the N.I. Act and while suspending the sentence in exercise of powers under Section 389 of the Cr.P.C., when the first appellate court directed the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court, the same can be said to be absolutely in consonance with the Statement of Objects and Reasons of amendment in Section 148 of the N.I. Act. 8.1 Having observed and found that because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of the enactment of Section 138 of the N.I. Act was being frustrated, the Parliament has thought it fit to amend Section 148 of the N.I. Act, by which the first appellate Court, in an appeal challenging the order of conviction under Section 138 of the N.I. Act, is conferred with the power to direct the convicted accused – appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. By the amendment in Section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused – appellant has been taken away and/or affected. By the amendment in Section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused – appellant has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in Section 148 of the N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 1.9.2018 shall not be applicable has no substance and cannot be accepted, as by amendment in Section 148 of the N.I. Act, no substantive right of appeal has been taken away and/or affected.. Therefore the decisions of this Court in the cases of Garikapatti Veeraya (supra) and Videocon International Limited (supra), relied upon by the learned senior counsel appearing on behalf of the appellants shall not be applicable to the facts of the case on hand. Therefore, considering the Statement of Objects and Reasons of the amendment in Section 148 of the N.I. Act stated hereinabove, on purposive interpretation of Section 148 of the N.I. Act as amended, we are of the opinion that Section 148 of the N.I. Act as amended, shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under Section 138 of the N.I. Act, even in a case where the criminal complaints for the offence under Section 138 of the N.I. Act were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018. If such a purposive interpretation is not adopted, in that case, the object and purpose of amendment in Section 148 of the N.I. Act would be frustrated. Therefore, as such, no error has been committed by the learned first appellate court directing the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court considering Section 148 of the N.I. Act, as amended. 9. Therefore, as such, no error has been committed by the learned first appellate court directing the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court considering Section 148 of the N.I. Act, as amended. 9. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the N.I. Act as amended, the appellate Court “may” order the appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court and the word used is not “shall” and therefore the discretion is vested with the first appellate court to direct the appellant – accused to deposit such sum and the appellate court has construed it as mandatory, which according to the learned Senior Advocate for the appellants would be contrary to the provisions of Section 148 of the N.I. Act as amended is concerned, considering the amended Section 148 of the N.I. Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the N.I. Act, though it is true that in amended Section 148 of the N.I. Act, the word used is “may”, it is generally to be construed as a “rule” or “shall” and not to direct to deposit by the appellate court is an exception for which special reasons are to be assigned. Therefore amended Section 148 of the N.I. Act confers power upon the Appellate Court to pass an order pending appeal to direct the Appellant Accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application filed by the Appellant Accused under Section 389 of the Cr.P.C. to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the N.I. Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the appellant. Therefore, if amended Section 148 of the N.I. Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the N.I. Act, but also Section 138 of the N.I. Act. Negotiable Instruments Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of the dishonoured of cheques. So as to see that due to delay tactics by the unscrupulous drawers of the dishonoured cheques due to easy filing of the appeals and obtaining stay in the proceedings, an injustice was caused to the payee of a dishonoured cheque who has to spend considerable time and resources in the court proceedings to realise the value of the cheque and having observed that such delay has compromised the sanctity of the cheque transactions, the Parliament has thought it fit to amend Section 148 of the N.I. Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the N.I. Act and also Sec 138 of the N.I. Act. 10. Now so far as the submission on behalf of the appellants, relying upon Section 357 (2) of the Cr.P.C. that once the appeal against the order of conviction is preferred, fine is not recoverable pending appeal and therefore such an order of deposit of 25% of the fine ought not to have been passed and in support of the above reliance placed upon the decision of this Court in the case of Dilip S. Dhanukar (supra) is concerned, the aforesaid has no substance. The opening word of amended Section 148 of the N.I. Act is that “notwithstanding anything contained in the Code of Criminal Procedure…..”. Therefore irrespective of the provisions of Section 357 (2) of the Cr.P.C., pending appeal before the first appellate court, challenging the order of conviction and sentence under Section 138 of the N.I. Act, the appellate court is conferred with the power to direct the appellant to deposit such sum pending appeal which shall be a minimum of 20% of the fine or compensation awarded by the trial Court.” 23. In view of the above and for the reasons stated above, I am of the view that applicability of the provision under Section 148 of the N.I. Act is mandatory. In view of the above and for the reasons stated above, I am of the view that applicability of the provision under Section 148 of the N.I. Act is mandatory. Deposit of fine not less than 20% is condition precedent for admission of appeal and provision under Section 357 (2) Cr.P.C. are not made applicable during admissibility and pendency of appeal. Section 148 of the N.I. Act can be applied to complaint filed prior to 1.9.2018. see no reason to interfere with the impugned order dated 23.10.2019 passed by the appellate sessions court directing the Appellants to deposit 30% of the amount of fine/compensation pending appeals. The order of appellate court is perfectly legal. There is no illegality or perversity in the order dated 23.10.2019. 24. Revision filed by the revisionist is devoid of merit and is liable to be dismissed. 25. Revision is dismissed.