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2023 DIGILAW 2237 (RAJ)

Mahendra Rajoriya v. State of Rajasthan

2023-12-13

SAMEER JAIN

body2023
ORDER : (Sameer Jain, J.) The instant petition is filed under Section 482 of the Code of Criminal Procedure challenging the order impugned dated 21.06.2023, passed by the learned court below, whereby a condition of deposition of 20% of the amount of conviction was imposed upon the petitioner, pending appeal. 2. Learned counsel for the petitioner has submitted that the complainant-respondent filed a complaint against the petitioner under section 138 of the Negotiable Instruments Act for dishonour of a cheque of Rs. 25,00,000/-. Thereafter, the learned trial court, having taken cognizance of the matter and hearing both the sides/scanning the record, convicted and sentenced the petitioner to two years simple imprisonment along with compensation to the tune of Rs. 50 lacs. It is further submitted that the petitioner being aggrieved of the said order, preferred an appeal before the appellate court, which vide order impugned dated 21.06.2023, directed the petitioner to deposit 20% amount of the conviction order within a period of 60 days, pending appeal against the conviction. In this background, being aggrieved of the order impugned mandating the deposition of 20% of the conviction amount, learned counsel has filed the instant petition under Section 482 of Cr.P.C. seeking the quashing and setting aside of order impugned dated 21.06.2023. 3. It is contended by the learned counsel for the petitioner that the condition of pre-deposit of 20% amount shall tantamount to deprivation of the petitioner's right of statutory appeal. In this regard, reliance has been placed upon the view taken by the Co- ordinate Bench of this Court in S.B. Criminal Miscellaneous (Petition) No. 1463/2021 titled as Asim Narang v. M/s Ginni International Ltd. and the dictum of the Hon'ble Apex Court as enunciated in Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd. and Ors.: Criminal Appeal No. 2741 of 2023. To further elucidate upon his claim, learned counsel averred that no debt liability arises upon the petitioner as the petitioner had taken debt of only 4 lac rupees, against which the petitioner had furnished over 10 cheques as security, but the respondent-complainant reflected/filled up an exaggerated amount, exceeding the admitted debt of 4 lac rupees, out of which 3 lac rupees have already been returned. Lastly, whilst praying for the quashing of the condition of deposit of 20% conviction amount, learned counsel for the petitioner submitted that under section 148 of the Negotiable Instruments Act, the said condition of pre-deposit is not mandatory in nature and the same can be exempted in extra-ordinary circumstances, including financial hardship. 4. Per contra, learned Public Prosecutor has relied upon the order impugned dated 21.06.2023 and has submitted that the condition of pre-deposit of 20% amount is in consonance with section 148 of the Negotiable Instruments Act and therefore, no interference with the order impugned is called for. 5. Heard learned counsel for the both the sides and scanned the record of the instant petition. 6. At the outset, this Court deems it appropriate to take note of section 148 of the Negotiable Instruments Act, which is reproduced herein-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 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. (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. 7. 7. Upon an analysis of the said provision, it is noted that section 148 of the Negotiable Instruments Act confers power upon the appellate court to pass an order pending appeal to direct the appellant/petitioner to deposit the sum which shall not be less than 20% of the fine or compensation, either on an application filed by the complainant or even on the application filed by the appellant/petitioner under Section 389 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 Negotiable Instruments 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/petitioner. 8. Furthermore, in Jamboo Bhandari (Supra), the Hon'ble Apex Court further clarified the position qua section 148 of the Negotiable Instruments Act and held that a purposive interpretation should be made of section 148 of the Negotiable Instruments Act, with its aims and objectives i.e. to provide speedy disposal of cases relating to the offence of dishonour of cheques. In essence, the Court opined that normally, the Appellate Court shall be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition shall amount to deprivation of the right of appeal of the appellant, exception can be carved out for reasons specifically recorded. 9. Therefore, in order for the petitioner to escape the condition of deposit of 20% amount and compel this Court to exercise its discretion in waiving the said amount, adequate grounds highlighting exceptional circumstances needed to be spelled out by the petitioner. However, during the course of arguments, the petitioner has not been able to do so. In this regard, it is noted that no evidence was brought on record by the petitioner to exhibit the financial shortcomings of the petitioner. Rather, no specific averments corroborated with any documents were brought to the attention of this Court to establish the purported financial hardship caused to the petitioner. In this regard, it is noted that no evidence was brought on record by the petitioner to exhibit the financial shortcomings of the petitioner. Rather, no specific averments corroborated with any documents were brought to the attention of this Court to establish the purported financial hardship caused to the petitioner. In this background, it is noted that the instant lis in question pertains to the Year 2015, qua which adjudication was done in the Year 2023. The matter is commercial in nature, encapsulating parting of money by the respondent-complainant, against which the cheque was dishonoured. Therefore, even if purposive interpretation of section 148 of the Negotiable Instruments Act were to be adopted, it would be prudent to note that the aims and objectives of the Act in itself highlight the need for speedy disposal of cases relating to the offence of dishonour of cheques, so as to see that due to the delay tactics of the unscrupulous drawers of the dishonoured cheques and due to the easy filing of appeals and obtaining stay in the proceedings, an injustice is not 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. Hence, in order to prevent the delay in proceedings ultimately compromising the sanctity of the cheque transactions, the condition of deposit of 20% amount was imposed. According, in the absence of any grounds raised by the petitioner, establishing sufficient reasons to carve an exception for the said condition of depositing 20% amount, this Court does not deem it appropriate to waive the condition so imposed. 10. According, in the absence of any grounds raised by the petitioner, establishing sufficient reasons to carve an exception for the said condition of depositing 20% amount, this Court does not deem it appropriate to waive the condition so imposed. 10. Therefore, considering that section 148 of the Negotiable Instruments Act confers power upon the appellate court to pass an order pending appeal to direct the petitioner to deposit the sum which shall not be less than 20% of the fine or compensation; that the aims and objectives of the Negotiable Instruments Act and Section 148 in particular, seek to prevent the long stretched proceedings in matters of dishonouring of cheques, especially taking into consideration the sanctity of a cheque and the consequent failed commercial transaction/alternate value of money/interest accumulated in connection therewith; that to meet out the exception carved for waiving the condition of 20% deposit, the petitioner ought to satisfy the court of the condition being unjust so as to deprive the petitioner of his right of statutory appeal; that however, during the course of arguments and otherwise, no evidence was brought on record by the petitioner to exhibit the financial shortcomings of the petitioner, rather, no specific averments corroborated with any documents were brought to the attention of this Court to establish the purported financial hardship caused to the petitioner; that the lis in question/transaction pertains to the Year 2015, qua which adjudication was done in the Year 2023 and considering that the exercise of power under Section 482 of Cr.P.C. is an exception and not the Rule, this Court does not deem it appropriate to interfere with the order impugned dated 21.06.2023. 11. As a result, in light of the foregoing observations, the instant petition is dismissed. 12. If the 20% amount is deposited by the petitioner within a period of 15 days, the appeal so preferred by the petitioner be heard by the concerned trial court. Otherwise, in an eventuality wherein the said amount is not deposited, the concerned court shall be at liberty to proceed in accordance with law, especially considering that the statutory period so provided by way of the order impugned i.e. 60 days, would have lapsed.