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2021 DIGILAW 149 (TRI)

Subrata Bikash Datta v. Jiban Kumar Rakshit

2021-09-02

AKIL KURESHI

body2021
JUDGMENT Petitioner original complainant of a cheque bouncing case has challenged an order dated 23.02.2021 passed by the learned Sessions Judge, North Tripura, Dharmanagar on an application filed by the petitioner in an appeal filed by the respondent No.1 the original accused. 2. Brief facts are as under: The case of the petitioner is that the respondent No.1 had borrowed certain sums of money from the petitioner from time to time and in discharge of the debt, the respondent No.1 had issued a cheque dated 30.07.2015 for a sum of Rs.7,57,640/-. This cheque being presented for realization was returned on the ground that the balance in the account was insufficient. The petitioner thereupon filed a complaint against the respondent No.1 under Section 138 of the Negotiable Instruments Act. The concerned Magistrate conducted a trial during which the respondent No.1 disputed his guilt, however, did not dispute his signature on the cheque. The learned Magistrate decided the criminal case by a judgment dated 12.02.2020 by which the respondent No.1 original accused was convicted for offence punishable under Section 138 of the Negotiable Instruments Act. He imposed a sentence of simple imprisonment of one year and ordered the accused to pay fine of Rs.10,00,000/- out of which Rs.8,00,000/- would be paid to the complainant towards the cheque amount with interest. 3. The accused challenged the said judgment of the Magistrate before the Sessions Court. This appeal was admitted on 27.02.2020. On the same date the Sessions Court also passed an order suspending the sentence without imposing any condition on the accused. Significantly, this order was passed without any notice to the complainant. The complainant received the notice of admission of appeal on 08.03.2020. According to him, however, soon thereafter there was a nationwide lockdown and on account of which he could put up his appearance before the Sessions Court only on 20.08.2020 once the situation became semi normal. On 17.11.2020 the petitioner moved an application before the Sessions Court in the said pending appeal and requested that the appellant be directed to deposit 20% of the fine amount in terms of Section 148 of the Negotiable Instruments Act. On 17.11.2020 the petitioner moved an application before the Sessions Court in the said pending appeal and requested that the appellant be directed to deposit 20% of the fine amount in terms of Section 148 of the Negotiable Instruments Act. This application was dismissed by the appellate Court by impugned order dated 23.02.2021 on following grounds: (i) That the appeal is already admitted for hearing and part hearing has already taken place and thus the appeal would be decided shortly; (ii) The Court cannot review its own order regarding admission of the appeal; and (iii) The Court has also passed an order suspending the sentence and any such direction for depositing 20% of the fine amount would amount to review of such order passed in Criminal Misc. Application No.05 of 2020. 4. Learned counsel for the petitioner Mr. Rajib Saha submitted that there was no delay on part of the petitioner in moving the application for depositing the amount. The learned Judge committed a serious error in rejecting such application on this ground. He further submitted that merely because the appeal was ripe for hearing, would not be a ground for refusing to exercise power under Section 148 of the Act. He lastly pointed out that the order for suspension of sentence was passed without a notice to the petitioner. He drew my attention to a judgment of the Supreme Court in case of Surinder Singh Deswal @ Col. S.S. Deswal & others v. Virender Gandhi & another dated 08-01-2020 in which in context of Section 148 of the Negotiable Instruments Act it was observed that the said provision should receive purposive interpretation. 5. I have heard learned Additional Public Prosecutor Mr. S. Debnath who has drawn my attention to the relevant statutory provisions. Learned advocate Mr. K.K. Roy who has entered appearance on behalf of respondent No.1 has remained consistently absent on several occasions in the past and also today. I, therefore, did not have the benefit of his arguments. 6. In my view, the learned Sessions Judge committed a serious error in rejecting the application of the petitioner by the impugned order. Firstly, there was no delay on part of the petitioner in moving such an application. As noted, service of admission of the appeal was made on the petitioner on 08.03.2020. 6. In my view, the learned Sessions Judge committed a serious error in rejecting the application of the petitioner by the impugned order. Firstly, there was no delay on part of the petitioner in moving such an application. As noted, service of admission of the appeal was made on the petitioner on 08.03.2020. One can take judicial notice of the fact that within a short period thereafter on or around 23.03.2020, to avoid spread of coronavirus there was a nationwide lockdown making movement of persons extremely difficult. The situation continued for a long time till around in the month of August and September, 2020 partial normalcy returned. If, therefore, the petitioner could enter his appearance in the appellate Court on 20.08.2020 and thereafter moved an application for depositing the amount in terms of Section 148 of the Negotiable Instruments Act on 17.11.2020, his approach cannot be stated to be lethargic. 7. The appeal was admitted ex parte so was the request for suspension of sentence granted, both on the same day. Surely the petitioner the complainant of a cheque bouncing, cannot be deprived of the benefit of a statutory provision on account of admission of the appeal and suspension of the sentence without hearing the complainant. 8. Section 148 of the Negotiable Instruments Act was inserted w.e.f. 01.09.2018 and reads as under: “148. Power of Appellate Court to order payment pending appeal against conviction.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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 subsection 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. In terms of sub-section (1) of Section 148 thus in an appeal by the drawer against the 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 which shall be in addition to any interim compensation which may have been paid under Section 143-A which is the power of the trial Court. As per sub-section (2) of Section 148 the amount would be deposited within sixty days from the date of the order unless extended by the Court up to a maximum of thirty days. The appellate Court may also release the amount in favour of the drawee of the cheque pending the appeal. 10. As pointed out by the counsel for the petitioner this provision came up for consideration before Supreme Court in case of Surinder Singh Deswal (supra). In the context of the use of the word “may” in sub-section (1), the Supreme Court had made following observations: “9. 10. As pointed out by the counsel for the petitioner this provision came up for consideration before Supreme Court in case of Surinder Singh Deswal (supra). In the context of the use of the word “may” in sub-section (1), the Supreme Court had made following observations: “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. 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 Section 138 of the N.I. Act.” 11. The provisions of Section 148 of the Negotiable Instruments Act, therefore, had to be activated as desired by the legislature. The appellate Court on its own could have issued such a direction without the petitioner having moved an application for such purpose. Even if the appellate Court omitted to do so and admitted the appeal which in the present case happened without notice to the petitioner, that cannot be the ground for refusing the application of the petitioner for such purpose. Sub-section (1) of Section 148 does not provide that the order for depositing the amount can be made only at the time or before admission of the appeal. In other words, depositing the amount is not a precondition for admission of the appeal. Sub-section (1) of Section 148 does not provide that the order for depositing the amount can be made only at the time or before admission of the appeal. In other words, depositing the amount is not a precondition for admission of the appeal. Admission of appeal would depend on the appellant making out a prima facie case. The direction for depositing the amount in terms of sub-section (1) of Section 148 would depend on the facts and circumstances of the case. The Supreme Court in case of Surinder Singh Deswal (supra) has stressed upon the requirement of giving purposive interpretation to the said provision utilizing the powers to ensure that there is no dilatory tactic employed by the drawer of the cheque. Even if the Supreme Court has not gone to the extent of holding that the word “may” used in sub-section (1) of Section 148 would be read as “shall”, nevertheless there is a clear intention discernible in the judgment of the Supreme Court that such provision should be utilized in appropriate cases. 12. Merely because the Court had passed the orders suspending the sentence on a petition filed by the accused, that too without hearing the complainant, again would not be a ground to frustrate the petition of the drawee of the cheque for giving directions in terms of sub-section (1) of Section 148 of the Negotiable Instruments Act. On all counts thus the District Court committed an error in dismissing the request of the petitioner without examining it on merits. 13. I have perused the judgment rendered by the learned Magistrate. As noted, the accused had not disputed his signature on the cheque. His defence primarily was that the cheque was not issued for discharge of a debt or a liability. If that was his defence, it was a duty of the accused to rebut the presumption arising under the Negotiable Instruments Act that such cheque was issued for discharge of a debt or liability. Prima facie it appears that the accused had taken no steps to discharge his liability. The appellate Court, therefore, ought to have insisted on the accused depositing at least 20% of the amount of fine imposed by the Magistrate. Under the circumstances, the respondent No.1 is directed to deposit a sum of Rs.2,00,000/- before the Sessions Court within sixty days from today. The appellate Court, therefore, ought to have insisted on the accused depositing at least 20% of the amount of fine imposed by the Magistrate. Under the circumstances, the respondent No.1 is directed to deposit a sum of Rs.2,00,000/- before the Sessions Court within sixty days from today. Upon such deposit the amount shall be released in favour of the appellant which release shall be subject to the order that may be passed in terms of proviso to sub-section (3) of Section 148 of the Negotiable Instruments Act if the accused is acquitted by the Sessions Court. 14. Before closing, it is clarified that the observations made in this order are only prima facie in nature and for the purpose of dealing with the request of the petitioner for depositing the amount under Section 148 of the Negotiable Instruments Act and the Sessions Court shall decide the appeal of the accused unmindful of any of these observations. Such appeal shall be taken up for hearing only after the amount is deposited by the accused as provided in this order. 15. Petition disposed of accordingly. Pending application(s), if any, also stands disposed of.