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2023 DIGILAW 211 (HP)

Devi Lal v. Punjab National Bank

2023-04-12

JYOTSNA REWAL DUA

body2023
JUDGMENT : JYOTSNA REWAL DUA, J. 1. Notice. Mr. Arvind Sharma, learned counsel, appears and waives service of notice on behalf of the respondent. With the consent of learned counsel for the parties, the matter is heard at this stage. 2. The petitioner was accused in the proceedings initiated by the respondent-Bank under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘N.I. Act’) before the learned Trial Court. Vide judgment dated 10.01.2023, learned Trial Court convicted the petitioner for the aforesaid offence. The petitioner was sentenced to undergo simple imprisonment for a period of six months and to pay compensation of Rs. 5,50,000/- to the complainant. In default of payment of compensation amount, he was to undergo further simple imprisonment for two months. 3. The petitioner preferred an appeal against the judgment of conviction and order of sentence dated 10.01.2023. Alongwith the appeal, the petitioner moved an application for suspension of sentence. Learned Appellate Court on 13.02.2023, suspended the sentence imposed upon the petitioner. The order was, however, subject to deposit of 40% of the compensation amount by the petitioner and thereafter furnishing personal bond in the sum of Rs. 3,00,000/- by him with one surety in the like amount to the satisfaction of the learned Trial Court. The grievance of the petitioner in the instant petition pertains to the condition of deposit of 40% of the compensation amount levied upon him under the impugned order dated 13.02.2023 for suspension of sentence by the learned Appellate Court. 4. Heard learned counsel for the parties. 5. Section 148 of the N.I. Act delineates Power of Appellate Court to order payment pending appeal against conviction in the following manner: “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 143A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or 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.” 6. In terms of Sub-Section (1) of Section 148, the Appellate Court is empowered to order suspension of sentence subject to the appellant depositing minimum 20% of the fine or compensation awarded by the learned Trial Court. 7. In Surinder Singh Deswal and Others vs. Virender Gandhi, (2019) 11 SCC 341 , Hon’ble Apex Court considered the amendment carried out in Section 148 of the N.I. Act. It was observed that to curb the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of Section 138 of the N.I. Act was being frustrated. The amendment carried out in Section 148 of the N.I. Act, by which the First Appellate Court in an appeal challenging the order of conviction under Section 138 of the N.I. Act is conferred with the power to direct the convict to deposit such sum, which shall be a minimum of 20% of the fine or compensation awarded by the learned Trial Court, does not affect the substantive right of appeal. It was further held that under the section, 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.” It will be apt to extract relevant portion from the judgment: “8. It was further held that under the section, 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.” It will be apt to extract relevant portion from the judgment: “8. 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 NI Act as amended is concerned, considering the amended Section 148 of the NI Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the NI Act, though it is true that in amended Section 148 of the NI 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 NI 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 Cr.P.C. to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the NI 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 NI Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the NI 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 NI Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the NI Act and also Section 138 of the NI Act.” 8. The judgment in Surender Singh Deswal’s case, supra, was again followed in Surinder Singh Deswal and Others vs. Virender Gandhi and Another, (2020) 2 SCC 514 . In the later judgment, it was also held that effect of failure to comply with the conditions imposed by the Appellate Court while ordering suspension of sentence, is deemed vacation of the protection. 9. In the instant case, learned First Appellate Court has ordered suspension of sentence subject to deposit of 40% of the compensation amount. Though the quantum of compensation amount to be deposited for suspension of sentence is in the realms of discretion of the First Appellate Court, however, the discretion has to be exercised judiciously and in accordance with the provisions of the Act. Though the quantum of compensation amount to be deposited for suspension of sentence is in the realms of discretion of the First Appellate Court, however, the discretion has to be exercised judiciously and in accordance with the provisions of the Act. Learned counsel for the petitioner has highlighted the fact that the petitioner has suffered badly in his business during COVID-19 pandemic and is not in a position at present to satisfy the condition imposed in the impugned order for suspension of sentence. 10. Taking into consideration the pleadings and submissions made by learned counsel for the parties, the impugned order dated 13.02.2023 passed by the learned First Appellate Court in Criminal Miscellaneous Application No. 98/2023 is modified to the limited extent that the petitioner is directed to deposit 25% of the compensation amount awarded by the learned Trial Court, within a period of four weeks from today. 11. The petition stands disposed of in the above terms, so also the pending miscellaneous applications, if any.