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2020 DIGILAW 237 (ALL)

Anuj Kumar v. State of Uttar Pradesh

2020-01-21

MANJU RANI CHAUHAN

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ORDER : Manju Rani Chauhan, J. 1. Heard Mr. Mukhtar Alam, learned counsel for the revisionist, Mr. P.K. Shahi, learned counsel for the State and Mr. Raj Kumar Kesari, Advocate who has put in appearance on behalf of opposite party No. 2 by filing his vakalatnama in Court today, which is taken on record. 2. Learned counsel for the parties agree that the present criminal revision may be disposed of at this stage without calling for any further affidavits in view of the order proposed to be passed today. 3. This criminal revision has been filed to quash the judgment and order dated 23rd December, 2019 passed by the Sessions Judge, Hapur in Criminal Appeal No. 111 of 2019 (Anuj Kumar v. Sanjay Kumar), Police Station-Babugarh, District-Hapur, which has been filed against the judgment and order of the Chief Judicial Magistrate, Hapur dated 29th November, 2019 under Section 138, N.I. Act, Under the impugned judgment, the appellate court has directed the revisionist to pay half of the total amount of compensation or fine as awarded by the trial court within 15 days during the pendency of the appeal. 4. Facts in short relevant for deciding the present criminal revision are as follows: 5. For payment of money of Rs. 12 lacs, which is alleged to have been taken by the revisionist from opposite party No. 2 earlier to purchase land, the revisionist has issued a cheque of Rs. 12 lacs bearing No. 113574 in favour of opposite party No. 2. On receipt of the same, opposite party No. 2 has submitted the same before the Bank for encashment but the said cheque has been returned by the Bank to opposite party No. 2 with an endorsement "payment stop". 6. Thereafter, opposite party No. 2 sent a notice to the revisionist on 29th June, 2017 which has duly been served upon him. Thereafter the opposite party No. 2 filed a complaint under Section 138 of the Negotiable Instrument (hereinafter referred to as the "N.I. Act") against the revisionist on 25th July, 20.17 in the Court of Chief Judicial Magistrate. which has been registered as Complaint Case No. 3351 of 2017 (Sanjay Kumar v. Anuj Kumar), Police Station-Kotwali, District-Hapur. Thereafter the revisionist has been summoned in the aforesaid complaint case. He also filed his objection. which has been registered as Complaint Case No. 3351 of 2017 (Sanjay Kumar v. Anuj Kumar), Police Station-Kotwali, District-Hapur. Thereafter the revisionist has been summoned in the aforesaid complaint case. He also filed his objection. After conclusion of trial, the Chief Judicial Magistrate, Hapur vide judgment and order dated 29th November, 2019 convicted the revisionist under Section 138, N.I. Act for two years simple imprisonment and awarded fine of Rs. 18,00,000/-. The Chief Judicial Magistrate has also clarified that out of total amount of fine/compensation of Rs. 18 lacs, Rs. 15 lacs has been directed in favour of opposite party No. 2 and remaining Rs. 3 lacs has been directed in favour of the State Government. Feeling aggrieved by the judgment and order of the trial court dated 29th November, 2019, the revisionist preferred Criminal Appeal No. 111 of 2019 before the Sessions Judge, Hapur. Along with the criminal appeal, the revisionist has also filed an application being Paper No. 5-Kha for suspending the effect and operation of the impugned judgment of the trial court till the disposal of the appeal and he has also filed an application being Paper No. 6-Kha for releasing the revisionist on bail during the pendency of the appeal. The appellate court vide order dated 23rd December, 2019 has partly allowed the Paper No. 5-Kha suspending the effect and operation of the judgment and order of the trial court dated 29th November, 2019 with a condition that the revisionist shall deposit half of the total amount of fine/compensation as awarded by the trial court. The appellate court has also allowed Paper No. 6-Kha releasing the revisionist on bail during the pendency of the appeal. It is against the condition imposed by the appellate court under the impugned judgment that the revisionist shall pay half of the total amount of fine/compensation that the present criminal revision has been filed. 7. Learned counsel for the revisionist submits that the order passed by the appellate court is illegal as under the provisions of N.I. Act, appellate court has no jurisdiction to direct the revisionist to pay half of the amount of compensation/fine during the pendency of the appeal as awarded by the trial court. 7. Learned counsel for the revisionist submits that the order passed by the appellate court is illegal as under the provisions of N.I. Act, appellate court has no jurisdiction to direct the revisionist to pay half of the amount of compensation/fine during the pendency of the appeal as awarded by the trial court. It is further submitted that at the time of filing of the complaint under Section 138, N.I. Act to be precised on 25th July, 2017, there was no provision under the provisions of N.I. Act empowering the trial court to issue a direction upon the revisionist to deposit the amount of compensation or fine. 8. When the Legislature introduced the Negotiable Instruments (Amendment) Act No. 20 of 2018, in the Principal Act, Section 148 was inserted after Section 147 empowering the appellate court to issue suitable direction to the appellant to deposit such sum amount which shall be minimum of 20% of the fine or compensation awarded by the trial court. However in the present case the, the appellate court in a very arbitrary manner, illegally ignoring the mandatory provision contained in Section 148, N.I. Act directed the revisionist to pay half of the total amount of compensation or fine. It is further submitted that the case of the revisionist is that Section 148, N.I. Act is amended by Act No. 20 of 2018 is not applicable qua criminal proceeding initiated prior to amendment in Section 148, N.I. Act. It is lastly submitted by the learned counsel for the revisionist that the legal proceedings whether civil or criminal are to be decided on the basis of law applicable on the date of 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. On the cumulative strength of the aforesaid submissions, learned counsel for the revisionist has urged that the order of the appellate court dated 23 rd December, 2019 directing the revisionist to deposit half of the total amount of compensation or fine during the pendency of the appeal has no legs to stand and the same is liable to be set aside by this Court. 9. Per contra, Mr. Raj Kumar Kesari, learned counsel for appearing for opposite party No. 2 as well as Mr. 9. Per contra, Mr. Raj Kumar Kesari, learned counsel for appearing for opposite party No. 2 as well as Mr. P.K. Shahi, learned counsel for the State have vehemently opposed the submissions made by the learned counsel for the revisionist by contending that the order passed by the appellate court directing the revisionist to pay half of the total amount of compensation or fine during the pendency of the appeal as awarded by the trial court is in consonance with the Statement of Objects and Reasons of the amendment in Section 148, N.I. Act and the same does not warrant any interference by this Court. 10. Mr. Raj Kumar Kesari, learned counsel for opposite party No. 2 has further submitted that because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay in proceedings, the object and purpose of N.I. Act was being frustrated and having found that due to such delay tactics, 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, the Parliament thought it appropriate to amend Section 148, N.I. Act which confers a power on the first appellate court to direct the appellant i.e. the convict for the offence under Section 138, N.I. Act to deposit such" sum which shall be minimum of 20% of the fine or compensation awarded by the trial court. Mr. Kesari further submits that so far as the submission made by the learned counsel for the revisionist that Section 148, N.I. Act would not be made applicable retrospectively and shall not be applicable to the appeals arising out of the criminal proceedings which were initiated much prior to the amendment in Section 148, N.I. Act is concerned, the same has no substance. It is submitted that first of all amendment in Section 148, N.I. Act is procedural in nature and therefore, there is no question of applying' the same retrospectively. It is submitted that as such no vested right of the appeal of the revisionist has been taken away or affected by amendment in Section 148, N.I. Act. It is submitted that first of all amendment in Section 148, N.I. Act is procedural in nature and therefore, there is no question of applying' the same retrospectively. It is submitted that as such no vested right of the appeal of the revisionist has been taken away or affected by amendment in Section 148, N.I. Act. It' is submitted that in the present case admittedly the appeal was preferred after the amendment in Section 148, N.I. Act came into force, and therefore, Section 148, N.I. Act as amended is rightly invoked/applied by the appellate court. It is, therefore, submitted that the amendment so sought in the Act by insertion of Section 148, N.I. Act is purely procedural in nature and not substantive and does not affect the vested rights of the appellant-revisionist, as such, the same can have a retrospective effect and can be applied in the present case also. It is lastly submitted by the learned counsel for opposite party No. 2 that the condition imposed by the appellate court in its impugned order dated 23rd December, 2019 directing the revisionist to pay half of the total amount of fine/compensation pending appeal as awarded by the trial court is le-gal and valid. The appellate court under the amended Section 148, N.I. Act has jurisdiction-to impose condition by requiring the appellant to pay minimum 20% of the total amount of fine or compensation pending appeal, meaning thereby that the appellate court has rightly imposed the condition by directing the revisionist to pay half of the total amount of compensation or fine pending appeal as awarded by the trial court. In support of his submissions, learned counsel for opposite party No. 2 has placed reliance upon the judgment of the Apex Court in the case of Surinder Singh Deshwal alias Col. S.S. Deswal and others v. Virender Gandhi, reported in AIR 2019 SC 2956 : (2019 CriLJ 3507 (SC). On the cumulative strength of the aforesaid submissions, learned counsel for opposite party No. 2 urges that there is no illegality or infirmity in the order impugned passed by the appellate court. Hence, the present criminal revision is liable to be rejected. 11. On the cumulative strength of the aforesaid submissions, learned counsel for opposite party No. 2 urges that there is no illegality or infirmity in the order impugned passed by the appellate court. Hence, the present criminal revision is liable to be rejected. 11. Having considered the submissions made by the learned counsel for the parties and having gone through the records of the present criminal revision, this finds that half of the total amount of fine or compensation pending appeal as awarded by the trial within fifteen days is highly excessive. Therefore; order passed by the appellate court dated 23rd December, 2019 is modified to the extent that the revisionist shall pay 25% of the total amount of fine/compensation pending appeal as awarded by the trial court within one month from today. It is further directed that the appellate court i.e. Sessions Judge, Hapur shall consider and decide Criminal Appeal No. 111 of 2019 (Anuj Kumar v. Sanjay Kumar), Police Station-Babugarh, District-Hapur, in accordance with law, by means of a reasoned and speaking order, preferably within two months from the date of production of a certified copy of this order, without granting any unnecessary adjournment to either of the par-, ties. It is also clarified that if possible, the appellate court shall proceed to decide the appeal on day-to-day basis. 12. With the aforesaid directions, the present criminal revision stands disposed of.