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2020 DIGILAW 454 (GAU)

Mukul Nath v. State of Assam

2020-04-29

RUMI KUMARI PHUKAN

body2020
ORDER : 1. Heard Mr. T. Deori, learned counsel for the petitioner and Mr. M.K. Das, learned counsel for the respondent No. 2. 2. By this application under Section 482 Cr.P.C. the petitioner has challenged the order dated 28.08.2019, passed by the learned Additional District and Sessions Judge (FTC) No. 3, Kamrup (M), Guwahati, in Criminal Appeal Case No. 150/2019, whereby the learned appellate Court has directed the present petitioner (accused) to deposit 20% of the compensation amount awarded by the learned trial Court in CR Case No. 2933/2015, under Section 138 of the NI Act. 3. The brief facts that can be narrated that the present petitioner faced criminal trial under Section 138 of the NI Act before the learned trial Court and the learned trial Court sentenced the accused to undergo SI for 6 months and to further pay a compensation of Rs. 3,03,400/- to the complainant and in default, SI for 2 months. The present petitioner preferred an appeal before the appellate Court and while admitting the appeal, the learned appellate Court vide order dated 28.08.2019, directed the petitioner to deposit 20% of the total compensation awarded by the learned trial Court within the next date. Now, the challenge has been made to the impugned order for giving direction to deposit 20% of the compensation amount. 4. The sole contention of the petitioner is that the appellate Court has no jurisdiction to pass such order, inasmuch as, the appeal is a continuation of the proceeding and whereas, the proceeding was of the year 2015 and the judgment was delivered on 29.07.2019 and the amendment under Section 148 was introduced w.e.f. 01.09.2018 and according to the learned counsel for the petitioner, impugned order is not maintainable and hence liable to be quashed. 5. Learned counsel for the respondent No. 2 has, however, contended that such a challenge made by the petitioner is devoid of any merit, as such order had been passed much after the amendment was introduced by the Act itself. It has been specifically submitted that the amendment was inserted on 1.9.2018 and the impugned order was passed on 28.08.2019, i.e. after the amendment and the appellate Court has rightly passed the order. 6. Considered the submissions of learned counsel for both the parties and also gone through the relevant provisions referred into. 7. It has been specifically submitted that the amendment was inserted on 1.9.2018 and the impugned order was passed on 28.08.2019, i.e. after the amendment and the appellate Court has rightly passed the order. 6. Considered the submissions of learned counsel for both the parties and also gone through the relevant provisions referred into. 7. The provision of NI Act was amended in the year 2019 to introduce certain provisions in the Act like Section 143 and Section 148, whereas the learned trial Court is now empowered to pay interim compensation under Section 143 (a) and the appellate Court is empowered to deposit certain compensation awarded by the learned trial Court. Obviously, such provision was inserted to enable the Court to deal with such matters effectively, where the grievances of the complainant (which is pecuniary in nature) can be redressed to certain extent and such cases cannot be frustrated only because of pendency of cases before the trial Court as well as the appellate Court. Let us reproduce Section 148 of the NI Act, which is relevant for the purpose this matter in issue. Section 148 reads as under: “Section 148: (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 sub-section 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.” 8. Such amendment came into effect from 01.09.2018. The Act itself is silent as to whether such order can be given retrospective or prospective effect. As per the provision, whenever such appeal came before the appellate Court, the appellate Court assume jurisdiction to deal with the matter w.e.f. 01.09.2018. In the present case, impugned order was passed on 28.08.2019, i.e. much subsequent to the amendment and that being so, the appellate Court has its jurisdiction to pass such order. The contention that the appeal being a continuation of the proceeding of the trial Court; the appellate Court is not empowered to pass an order cannot be accepted as because the very amendment has been made to take care of all such consequences. 9. It is needless to say that because of pendency of a case, the complainant of a case has to wait for long forgetting the result/fruit of the case, for years together and having anxiety over such matters, the Legislature in its wisdom has introduced such amendment in the Act itself and any such contention contrary to the provision cannot be allowed to prevail. In the present case, the complaint was filed far back as in the year 2015 and the appellate Court passed the impugned order in the year 2019, as per the amendment introduced. 10. In view of all above, I find no substance to the challenge made in this criminal petition to interfere into the order passed by the learned appellate Court. 10. In view of all above, I find no substance to the challenge made in this criminal petition to interfere into the order passed by the learned appellate Court. Accordingly, the criminal petition stands dismissed with a direction to the petitioner to deposit the amount, as directed, if not in the meantime deposited before the trial Court, within one month from today.