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Madhya Pradesh High Court · body

2023 DIGILAW 312 (MP)

Suresh Chhabra v. Mahindra Mahindra Ltd.

2023-02-27

ANJULI PALO

body2023
ORDER 1. In this petition under Section 482 of the Code of Criminal Procedure, the petitioner has challenged the direction issued in the order dated 30.01.2023 by learned 1st Additional Sessions Judge, Damoh in Criminal Appeal No.08.2023 whereby lower appellate Court has directed the petitioner along with co-accused person to pay 20% of the sum i.e. Rs.1,60,79,750/- within a period of sixty days as a condition for suspension of sentence. 2. In this case the trial Court vide judgment dated 26.12.2022, convicted the petitioner and co-accused person for offence punishable under Section 138 of the Negotiable Instruments Act and sentenced them for R for 1 year and to pay a sum of Rs.1,60,79,750 - to the complainant. 3. The petitioner along with co-accused filed an appeal before the lower appellate Court wherein an application under Section 389 of the Cr.P.C. was filed. The lower appellate Court while deciding the aforesaid application vide impugned order dated 30.01.2023 suspended the sentence imposed on the accused person subject to the condition that in view of Section 148 of the NI Act, the accused persons shall deposit 20% of the amount in question within sixty days. 4. On the question of maintainability, the counsel for the petitioner submits that Office objection is liable to be overruled because the petitioner in this petition has not challenged any judgment passed by the lower appellate Court and right or liability of the parties are not being decided in this case. It is only the condition imposed by the lower appellate Court while granting suspension of sentence is being challenged in this petition. Hence, invocation of power under Section 482 of the Cr.P.C. is maintainable. Counsel appearing for the petitioner has referred to the order dated 14.11.2022 passed in M.Cr.C. No.48528 of 2022 and the order dated 14.10.2019 passed in M.Cr.C. No.41833 of 2019 and contended that similar petitions under Section 482 of the Cr.P.C. have been entertained by this Court. 5. Heard the counsel for the petitioner and perused the documents as well as decisions relied upon by her. 6. In view of the nature of order which is under challenge and also in view of the fact that this Court has entertained petitions under Section 482 of the Cr.P.C., namely, M.Cr.C. No.48528 of 2022 M.Cr.C. No.41833 of 2019 arising out of similar matter, Office objection is ignored and the petition is found to be maintainable. 7. 6. In view of the nature of order which is under challenge and also in view of the fact that this Court has entertained petitions under Section 482 of the Cr.P.C., namely, M.Cr.C. No.48528 of 2022 M.Cr.C. No.41833 of 2019 arising out of similar matter, Office objection is ignored and the petition is found to be maintainable. 7. Heard on admission. 8. Learned counsel for the petitioner while challenging the condition imposed vide impugned order, submitted that the petitioner has been erroneously convicted by the trial Court and further that compensation under Section 357 of the Cr.P.C. needs to be reasonable and cannot be arbitrary and it should not be more than double of the cheque amount. It is vehemently urged that the lower appellate Court has erred in directing to deposit 20% of amount Rs.1,60,79, 750/- as it is onerous and curtail the liberty of the petitioner. In support of her contentions, learned counsel for the petitioner has placed reliance on the decisions in the cases of Somnath Sarkar v. Utpal Basu Mallicks and another, (2013) 16 SCC 465 ; Mrs. Priyanka Shrivastava v. State of UP, (CRA No.781 of 2012 decided on 19.03.2015 - SC) and M. Shabeer v. Anitha Bajee (CRL. REV PET No. 624 of 2022 decided on 19.10.2022 by High Court of Kerala at Ernakulam). Hence, it is prayed that the said part of the impugned order dated 30.01.2023 should be set aside. 9. In this context, it is apposite to refer to the decision in the case of Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 wherein the Hon'ble the Supreme Court while dealing with Section 148 of the NI Act has held that the use of word a'remaya' in Section 148 of the NI Act has to be read as 'shall' and the appellate Courts must ordinary order deposit of minimum 20% of the compensation or fine amount imposed by the trial Court. It is further held that not directing deposit of amount is exception coupled with assignment of special reasons for not ordering deposit of amount. It is appropriate to refer to paragraphs 8 and 9 of the aforesaid decision which read as follows: "8. It is further held that not directing deposit of amount is exception coupled with assignment of special reasons for not ordering deposit of amount. It is appropriate to refer to paragraphs 8 and 9 of the aforesaid decision which read as follows: "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 a'remaya' 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 a'' 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 'may' or 'may' 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 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 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 Sec 138 of the N.I. Act. 9. Now so far as the submission on behalf of the appellants, relying upon Section 357(2) of the Cr.P.C. that once the appeal against the order of conviction is preferred, fine is not recoverable pending appeal and therefore such an order of deposit of 25% of the fine ought not to have been passed and in support of the above reliance placed upon the decision of this Court in the case of Dilip S. Dhanukar (supra) is concerned, the aforesaid has no substance. The opening word of amended Section 148 of the N.I. Act is that 'notwithstanding anything contained in the Code of Criminal Procedure'. Therefore irrespective of the provisions of Section 357(2) of the Cr.P.C., pending appeal before the first appellate court, challenging the order of conviction and sentence under Section 138 of the N.I. Act, the appellate court is conferred with the power to direct the appellant to deposit such sum pending appeal which shall be a minimum of 20% of the fine or compensation awarded by the trial Court." 10. In the case at hand, the trial Court convicted the petitioner accused for offence punishable under Section 138 of the NI Act and sentenced him to undergo RI for one year and further to pay a sum of Rs.1,60,79,750/- to the complainant as compensation under Section 357 of the Cr.P.C. (Rs.70,00,000/- cheque amount + Rs.89,19,750/- Interest + 1,50,000/-Court fees + Rs.10,000/- Cost of litigation). It has further been directed by the trial Court that in default of payment of the same, the petitioner shall further undergo RI for a period of two months. 11. The disputed cheque was issued in favour of the complainant on 30.10.2008 for a sum of Rs.70,00,000/- which was dishonoured on 09.01.2009. The judgment was passed by the trial Court on 26.12.2022. The trial Court placed reliance on the decision in the case of R. Vijayan v. Babi and Others, (2012) 1 SCC 260 and calculated interest at the rate of 9% per annum i.e. Rs.89,19,750/- which was included in compensation. 12. Having heard counsel for the petitioner, after perusal of the impugned order as well as the documents available on record, this Court is of the considered opinion that neither any exception is carved out nor any special grounds are available, to interfere with the condition of depositing 20% of the amount imposed by the lower appellate Court while dealing with the Section 389 of the Cr.P.C. 13. In view of the preceding analysis, this petition being devoid of merit, stands dismissed.