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2020 DIGILAW 354 (HP)

Lalit Kaushal v. Yadvinder Kaushal

2020-06-22

VIVEK SINGH THAKUR

body2020
JUDGMENT Vivek Singh Thakur, J. - Lalit Kaushal, petitioner No.1 herein, is a convict in Criminal Complaint No. 9/3 of 2013, titled Yadvinder Kaushal vs. Ravinder Nath Tagore Memorial ITC and another, filed under Section 138 of Negotiable Instruments Act, 1881, (hereinafter in short 'NI Act'), wherein, vide judgment dated 30.5.2015, he has been convicted by learned Judicial Magistrate 1st Class, Kasauli and sentenced to undergo simple imprisonment till rising of Court under Section 138 of NI Act and to pay a sum of Rs.12 lacs (double of cheque amount), as compensation to complainant within a period of 30 days from the date of passing of order and in default of payment of compensation, convict will have to undergo simple imprisonment for one year. 2. Order dated 30.6.2015, impugned herein, has been passed by the Appellate Court i.e. learned Sessions Judge, Solan wherein under Section 389 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC') sentence, imposed upon the petitioner, has been suspended, during pendency of appeal, subject to furnishing personal bond in the sum of Rs.20,000/- with one surety in the like amount within one month and also subject to deposit of 50% of compensation amount within four months from the date of order. 3. Petitioners are aggrieved from imposition of condition of deposit of 50% of amount of compensation on the ground that impugned order is without jurisdiction and against the provisions of Cr.PC. 4. It is canvassed on behalf of petitioner that provisions of Cr.P.C. do not warrant or empower the Appellate Court to direct deposit of the compensation amount or part thereof at the time of suspending the sentence under Section 389 Cr.P.C. and that since compensation does not form part of fine imposed by Magistrate, therefore, convict cannot be called upon to deposit the same at the time of suspending the substantive part of sentence as for recovery of compensation amount complainant has to resort to independent proceedings. Further that the Appellate Court under Section 389 Cr.P.C. is not empowered to impose such terms and conditions, like present one, so as to frustrate the right of appeal available to petitioner under statute. It is contended that "fine" and "compensation" are two different terms having distinct meaning and effects. Further that the Appellate Court under Section 389 Cr.P.C. is not empowered to impose such terms and conditions, like present one, so as to frustrate the right of appeal available to petitioner under statute. It is contended that "fine" and "compensation" are two different terms having distinct meaning and effects. Though compensation amount can be directed to be recovered as fine but fine stands at a higher footing than the compensation awarded by the Court and compensation, so imposed, under Section 357 (3) Cr.P.C., can only be recovered but at the time of staying the substantive part of sentence, the same cannot be ordered to be deposited as the same does not form part of fine and under Section 389(1) of Cr.P.C. the Appellate Court can only call for deposit of fine which is mandatory but not compensation and, therefore, direction to accused to deposit the compensation, at the time of exercising power under Section 389(1) of Cr.P.C., is in excess of jurisdiction. 5. Complaint in the present case was filed on 5.1.2013, which was decided on 30.5.2015 convicting and sentencing the petitioner detailed supra. Petitioner has preferred appeal on 19.6.2015 wherein impugned order dated 30.6.2015 has been passed by the Appellate Court with direction to deposit 50% of compensation amount within four months. 6. Earlier there was no specific provision under NI Act, providing the Appellate Court to pass an order to deposit a sum of fine/compensation in an appeal preferred by the drawer against his conviction under Section 138 of NI Act. Now w.e.f. 1.9.2018, by way of amendment No. 20 of 2018, Section 148 has been inserted in NI Act empowering the Appellate Court to direct deposit of such amount which shall be a minimum of 20% of fine or compensation awarded by the trial Court. Undisputedly, at the time of passing of impugned order, Section 148 of NI Act was not in existence and the impugned order was passed prior to amendment dated 1.9.2018, whereby Section 148 of NI Act was inserted empowering the Appellate Court to direct the convict to deposit a sum of fine or compensation awarded by the trial Court in appeal. 7. 7. The Apex Court in Suganthi Suresh Kumar vs. Jagdeeshan, (2002) 1 JT 220 SC; (2002)2 SCC 420 , has held that sentence for offence under Section 138 of NI Act should be of such a nature as to give proper effect to the object of legislation and no drawer of the cheque can be allowed to take dishonour of cheque issued by him light heartedly. In the very same judgment, referring its earlier pronouncement in K.Bhaskaran vs. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 , has been held that the Magistrate can alleviate the grievance of the complainant by making resort to Section 357(3) Cr.P.C. wherein no limit of compensation to be awarded by the Magistrate has been mentioned and, thus, the Magistrate is empowered to impose a reasonable amount of compensation payable to complainant. 8. In Stanny Felix Pinto vs. Jangid Builders Pvt. Ltd and another, (2001) 2 SCC 416 the Apex Court has upheld the imposition of conditions by the High Court for depositing Rs. 4 lacs out of Rs.20 lacs, the total amount of fine imposed by trial Court, at the time of suspending the sentence for offence under Section 138 of NI Act with further observation that if fine amount is heavy, the Court can direct at least a portion thereof to be remitted where convicted person wants the sentence to be suspended during pendency of appeal. The Apex Court has observed that while suspending the sentence for offence under Section 138 of NI Act, it is advisable that Court should impose the condition that the fine part is remitted within a certain period. 9. In Dalmia Cement (Bharat) Ltd. vs. Galaxy Traders and Agencies Ltd. and others, (2001) 6 SCC 463 , it has been reiterated by the Supreme Court that NI Act was enacted and Section 138 thereof was incorporated with a specific object of making a special provision by incorporating a strict liability with respect to the cheque, a Negotiable Instrument. 9. In Dalmia Cement (Bharat) Ltd. vs. Galaxy Traders and Agencies Ltd. and others, (2001) 6 SCC 463 , it has been reiterated by the Supreme Court that NI Act was enacted and Section 138 thereof was incorporated with a specific object of making a special provision by incorporating a strict liability with respect to the cheque, a Negotiable Instrument. Law relating to NI Act is the law of commercial world, legislated to facilitate the activities in trade and commerce by making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another and in absence of such instrument, including a cheque, the trade and commercial activities, in the present day world, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force and further that laws relating to NI Act are, required to be interpreted in the light of objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for redressal of the grievances to the litigants. Further that Section 138 of the NI Act makes a civil transaction to be an offence by fiction of law. 10. The Apex Court in Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd and another, (2007) 6 SCC 528 , though has observed that an appeal is indisputably a statutory right and right to appeal from a judgment of conviction affecting the liberty of a person, keeping in view the expansive definition of Article 21, is also a fundamental right and it can neither be interfered with or impaired, nor can it be subjected to any condition and can be taken away only by a subsequent enactment providing so expressly or by necessary intendment, but not otherwise, however, at the same time the right of Court to impose certain terms and conditions at the time of suspension of sentence has also been recognized with rider that prosecution under NI Act may be contemplated as a measure of deterrence, but the same is never meant to be a persecution. 11. 11. Section 357(1) of Cr.PC empowers the Court to impose the sentence of fine or a sentence of which fine forms a part and to order the whole or any part of fine recovered to be applied in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of Court, recoverable by such person in a Civil Court. 12. Section 357(3) of Cr.PC provides that Court may also impose the sentence of which fine does not form a part and at the time of passing the judgment may order the accused person to pay, by way of compensation such amount as may be specified in the order to the person, who has suffered any loss or injury by reason of act for which the accused person has been so sentenced. 13. Section 357(2) Cr.P.C. provides that if the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed or if an appeal be presented, before the decision of appeal. 14. In Dalip S. Dahanukar's case the Apex Court has held that provision of automatic stay, provided under Section 357(2) Cr.PC, shall also apply in relation to amount of compensation directed to be paid in terms of Section 357(3) Cr.PC. In this case the Apex Court has further opined as under:- "72. We, therefore, are of the opinion:- (i) in a case of this nature, sub-section (2) of Section 357 of the Code of Criminal Procedure would be attracted even when the 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 Section 357 of the Code of Criminal Procedure; (v) no unreasonable amount of compensation can be directed to be paid." 15. The Apex Court in Surender Singh Deswal and others vs. Virender Gandhi, (2019) 11 SCC 341 , has held that amended Section 148 of NI Act is to be purposively interpreted in such a manner so as to serve the Object and Reasons of not only amendment under Section 148 but also Section 138 of NI Act and 15use of word 'may' in Section 148 NI Act has to be read as 'shall' and Appellate Court must ordinarily order deposit of minimum 20% of compensation or fine amount imposed by trial Court and not to direct to deposit by Appellate Court is an exception for which special reasons are to be assigned. The Apex Court in this case has upheld the application of Section 148 of NI Act in a case where complaint under Section 138 of NI Act was filed before the amendment inserting Section 148 in the NI Act. Imposition of condition to deposit was upheld by observing that at the time of suspending the sentence the amendment had come into force and Section 148 of NI Act was on statute. 16. Considering the provisions of Section 357(2) Cr.P.C. and that of Section 148 of NI Act, it has been observed by the Supreme Court that Section 148 of NI Act starts with words "notwithstanding anything contained in the Code of Criminal Procedure...." and therefore, it is held that irrespective of the provisions of Section 357(2) Cr.P.C., pending appeal before the first Appellate Court, challenging the order of conviction and sentence under Section 138 of NI 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. 17. In present case, not only complaint as well as appeal was preferred before the insertion of Section 148 of NI Act, but impugned order was also passed before that. However, even prior to insertion of Section 148 of NI Act as held by the Apex Court in Stanny Felix Pinto vs. Jangid Builders Pvt. Ltd and another, (2001) 2 SCC 416 ; and Suganthi Suresh Kumar vs. Jagdeeshan, (2002) 1 JT 220 SC; (2002)2 SCC 420 , the Appellate Court has been held to be empowered to impose condition to deposit the amount of compensation or part thereof at the time of suspending the sentence. Further Section 148 of NI Act does not limits the power of Court to pass an order to deposit fine or compensation or part thereof during appeal at the time of suspension of sentence only, but it empowers the Court to pass such order in an appeal by the drawer against conviction under Section 138 of NI Act without any qualification of time for passing such order. Therefore, such order can be passed by Appellate Court at any time during pendency of appeal. This power is not confined only to the stage of suspension of sentence, but it can be exercised at any time. The Court has been empowered to pass order with respect to fine as well as compensation whether the compensation is covered under Section 357(1) or 357(3) Cr.P.C. and as held by the Apex Court in Surender Singh Daswal's case provisions of Section 357(2) Cr.P.C. will not be applicable at the time of exercising the power by Court under Section 148 of NI Act. Therefore, at the time of suspension of sentence, Appellate Court, has empowered to impose condition to deposit of fine or compensation or part thereof, prior to insertion of Section 148 of NI Act and now, in view of Section 148 of NI Act, this power has been expressly confirmed not only at the time of suspension of sentence but at any time during appeal. At the time of directing to deposit the quantum of amount should be determined keeping in view nature of lis, capability and capacity of parties to bear burden and statutory right to appeal viz-a-viz provisions of Section 148 of NI Act. This power can be exercised by Appellate Court even in appeals preferred before insertion of Section 148 of NI Act, which are pending adjudication, irrespective of the fact that such condition was not imposed at the time of suspension of sentence, while appeal was preferred. 18. In the present case, trial Magistrate has imposed compensation to be paid to complainant with default clause of imprisonment of one year in case petitioner fails to pay the compensation, within four weeks. 18. In the present case, trial Magistrate has imposed compensation to be paid to complainant with default clause of imprisonment of one year in case petitioner fails to pay the compensation, within four weeks. Sction 138 of NI Act empowers the Court to levy a fine which may extend twice the amount of cheque, as referred supra, and further in view of pronouncement of Apex Court in Suganthi Suresh Kumar's case, referred supra, the trial Magistrate is also empowered to award any sum as compensation under Section 357 Cr.P.C. and in case, petitioner choses to serve the sentence in default, even then amount of compensation would be recoverable under Section 421 Cr.P.C. read with Section 431 of Cr.P.C., irrespective of the fact that there is default clause in order for non-payment of compensation within 4 months. 19. Petitioner, in alternative, has also prayed to permit him to deposit the amount directed by Appellate Court, in installments on such terms and conditions as may be deemed proper. Complaint was decided and petitioner was convicted on 30.5.2015 and thereafter impugned order was passed on 30.6.2015. Now, we are in June 2020. The cheque amount was of Rs.6 lacs, whereas compensation imposed by the trial Court is double thereof i.e. Rs.12 lacs. At the time of passing of order, condition of deposit 50% of amount of Rs.6 lacs was imposed about 5 years back. Therefore, prayer of petitioner to grant him time to deposit the amount in installments is concerned, that has also lost force after lapse of 5 years. However taking a lenient view, liberty is granted to petitioner to make such prayer before the Appellate Court and if such prayer is preferred before the First Appellate Court, the same shall be considered by the Appellate Court, considering the entire facts and circumstances of case and also the quantum of amount without being influenced by observations made hereinabove as same are to be construed to have been made only for purpose of deciding present petition. 20. In view of aforesaid discussion and observations, present petition is dismissed, in aforesaid terms, with directions to parties to appear before the First Appellate Court either in person or through Advocate on 27th July, 2020. Record be sent back.