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2021 DIGILAW 138 (ORI)

Sridev Kumar Muduli v. Satyabrat Nayak

2021-03-19

S.K.SAHOO

body2021
JUDGMENT 1. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). 2. Heard Mr. Samir Kumar Mishra, learned counsel for the petitioner and Mr. Arun Kumar Budhia, learned counsel for the opposite party. 3. This is an application filed by the petitioner Sridev Kumar Muduli for quashing the impugned order dated 01.10.2019 passed by the learned Addl. Sessions Judge, Jajpur Road in Criminal Appeal No.05 of 2019 in directing the petitioner to deposit one-fourth of the compensation amount as awarded by the learned trial Court as a condition precedent for being released on bail pending disposal of the appeal. 4. As it appears, the petitioner faced trial in the Court of learned J.M.F.C, Jajpur Road in I.C.C. Case No.190 of 2016 for commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereafter 'N.I. Act') and he was found guilty of such offence and sentenced to undergo simple imprisonment for six months with a further direction to pay a compensation amount of Rs.47,70,000/- (forty seven lakh seventy thousand) to the opposite party, in default, to undergo simple imprisonment for a further period of one month. 5. The judgment and order of conviction was challenged by the petitioner before the learned appellate Court and as per impugned order dated 01.10.2019, the learned appellate Court directed the petitioner to be released on bail pending disposal of the appeal subject to condition to deposit one-fourth of the compensation amount as awarded by the learned trial Court under section 148 of the N.I. Act i.e. amounting to Rs. 11,92,500/- (rupees eleven lakhs ninety two thousand five hundred only) before the Judge-in-charge Account, Jajpur Road within one month from the date of passing of the order. 6. Mr. Mishra, learned counsel for the petitioner submits that the order of deposit of one-fourth of the compensation amount by the learned appellate Court is palpably wrong and in exceptional circumstances, the amount can be reduced. 7. Mr. Budhia, learned counsel for the opposite party, on the other hand, submitted that the learned trial Court has awarded a meager compensation amount and even the learned counsel for the appellant made a submission before the appellate Court to deposit minimum twenty percent of the compensation amount and therefore, there is no illegality in the impugned order of the appellate Court 8. Section 148 of the N.I. Act is extracted herein below:- "148. Section 148 of the N.I. Act is extracted herein below:- "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 sub-section shall be in addition to any interim compensation paid by the appellant under section 143-A. (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." 9. Interpreting the said provision, the Hon'ble Supreme Court in the case of Surinder Singh Deswal @ Col. S.S. Deswal -Vrs.- Virender Gandhi reported in (2019) 75 Orissa Criminal Reports (SC) 480 held as follows:- "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 Code of Criminal Procedure 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. The 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 dishonour 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, 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 Section 138 of the N.I. Act." 10. There is no dispute that section 143-A of the N.I. Act deals with the cases which are pending for trial and empowers the trial Court to direct the drawer of the cheque to pay interim compensation to the complainant and Section 148 of the N.I. Act deals with the cases which are in appeal. 11. The impugned order was passed by the learned appellate Court on 01.10.2019. The appellate Court which has suspended the sentence on a condition, after noticing non-compliance of the condition can very well hold that the suspension of sentence stands vacated due to non-compliance. However, this Court has stayed the operation of order on 13.11.2019 in I.A. No.975 of 2019. 12. In view of the ratio laid down in the case of Surinder Singh Deswal (supra), the appellate Court under section 148 of the N.I. Act cannot pass an order in directing the appellant-accused to deposit any sum less than twenty percent of the fine or compensation amount pending disposal of appeal and such amount shall ordinarily be deposited by the appellant within sixty days from the date of passing order by the appellate Court. Only in exceptional circumstances, if sufficient cause is shown by the appellant, the period of deposit can be extended for a further period which shall not exceed thirty days. 13. Since the learned counsel for the petitioner also submitted before the learned appellate Court to pass an order to deposit the minimum of twenty percent of compensation amount by the petitioner, which was not found to be acceptable by the appellate Court and since the financial stability of people has been seriously affected on account of COVID-19 pandemic, I modify the impugned order passed by the learned Addl. Sessions Judge, Jajpur Road to the extent that instead of one-fourth of the compensation amount, the petitioner shall deposit twenty percent of the compensation amount as awarded by the learned trial Court on or before 16th April 2021 before the Judge-in-charge Account, Jajpur Road. 14. Sessions Judge, Jajpur Road to the extent that instead of one-fourth of the compensation amount, the petitioner shall deposit twenty percent of the compensation amount as awarded by the learned trial Court on or before 16th April 2021 before the Judge-in-charge Account, Jajpur Road. 14. If the learned appellate Court does not think it proper to release the deposit amount by the petitioner to the opposite party, the amount so deposited, shall be kept in short-term fixed deposit scheme in any Nationalized Bank which shall be renewed from time to time till the disposal of the appeal. 15. The learned appellate Court shall do well to dispose of the criminal appeal by the end of June 2021. 16. Learned counsel for both the parties shall co-operate in the final adjudication of the appeal within the said period. The interim order of stay passed on 13.11.2019 in I.A. No.974 of 2019 stands vacated. 17. With the aforesaid modification, the CRLMA application is disposed of. 18. Urgent certified copy of this order be granted on proper application.