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2023 DIGILAW 252 (PNJ)

Amarjeet Singh v. Royal Mark

2023-01-17

AMAN CHAUDHARY

body2023
JUDGMENT Aman Chaudhary, J. Present petition has been filed under Section 482 Cr.P.C. for quashing of the condition imposed by the appellate Court vide order dated 04.02.2020 whereby the petitioner has been directed to deposit one third amount of the compensation amount while suspending the sentence in appeal under section 138 of the Negotiable Instruments Act, 1881 vide order dated 09.01.2020 (Annexure P-1). 2. Briefly put the facts of the case are that in a complaint filed under section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') by respondent on account of dishonour of the cheque bearing No.947034 dated 20.04.2017, learned Chief Judicial Magistrate, Mohali vide order dated 09.01.2020, has convicted and sentenced the petitioner to undergo rigorous imprisonment for one year and to pay a fine of Rs.4,80,000/-. Against which, the petitioner filed an appeal, alongwith the application for suspension of his sentence. The said application has been allowed vide order dated 04.02.2020 by learned Additional Sessions Judge, Mohali and the sentence of the petitioner has been suspended, subject to furnishing bail bond in the sum of Rs.50,000/- with one surety as well as to deposit 1/3rd amount of compensation within a period of two months. 3. Learned counsel for the petitioner submits that Section 148(1) of the Act prescribes minimum amount of 20% as deposit, however, the learned Appellate Court has directed the petitioner to deposit 1/3rd of the amount, which due to financial loss suffered on account of COVID-19 pandemic, the petitioner is not in a position to deposit. At this stage, he submits that the petitioner is ready to deposit the minimum amount as per the provision. Thus, he prays for the modification of the order dated 04.02.2020 to the aforesaid extent. 4. Despite service, none has appeared on behalf of the respondent. 5. Heard and perused. 6. For the adjudication of the present issue, it would be apposite to refer to Section 148 of the Act, which reads thus:- "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. 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. Hon'ble The Supreme Court in India in the case Surinder Singh Deswal v. Virender Gandhi reported in (2019) 11 SCC 341 , while dealing with the interpretation of the word 'may' in section 148(1) of the Act has held thus: "9. Hon'ble The Supreme Court in India in the case Surinder Singh Deswal v. Virender Gandhi reported in (2019) 11 SCC 341 , while dealing with the interpretation of the word 'may' in section 148(1) of the Act has held thus: "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 ap-plication 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 re-sources 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." 8. The Appellate Court while directing deposit of 1/3rd of the total amount of compensation of Rs.4,80,000/- has not assigned any reason and the basis of determination thereof. On the other hand the petitioner is stated to have suffered a severe financial crunch as an aftermath of Covid-19 Pandemic, on account of which he is not in a position to deposit the same. He however is, ready and willing to forthwith make a deposit of the minimum amount. Therefore, keeping in view the peculiar facts and circumstances of the case, this Court finds that ends of justice would be sufficiently met by directing the petitioner to deposit 20% of the amount of compensation, as per the above provision. 9. Resultantly, the present petition is partly allowed by modifying the impugned order dated 04.02.2020, to the aforesaid extent. 10. Disposed of.