Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 1504 (GUJ)

MILAN S/O DINESHBHAI CHOLERA v. STATE OF GUJARAT

2024-07-03

GITA GOPI

body2024
ORDER : 1. RULE returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent-State and learned Advocate Mr. Ashish M. Dagli waives service of notice of Rule on behalf of the complainant-respondent No. 2. 2. By way of the above Revision Applications, the common applicant-revisionist has challenged the order/s dated 03.05.2024 passed below Exhibit 1 in Criminal Appeal Nos. 293 of 2024 and 294 of 2024 by the learned 8th Additional Sessions Judge, Rajkot. 3. Learned Advocate for the applicant-revisionist Mr. Anand B. Gogia has referred to the decision of the Hon’ble Apex Court in the case of Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd. and Others, (2023) 10 SCC 446 and submitted that exceptional cases were brought to the notice of the Court to state that there was no necessity for the learned Trial Court to even order the deposit of 20% of fine and compensation amount before the Nazir of the learned District Court. 4. It is further submitted that the order of the learned trial Court is to effect to pay the cheque amount as compensation within one month of the order and in default, to suffer six months simple imprisonment. It is further submitted that the present revisionist has been sentenced to one year and six months simple imprisonment for the offence as noted under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to in short as ‘the N.I. Act’). 5. It is also submitted that the decision of Jamboo Bhandari (supra) clarifies that a purposive interpretation should be made of Section 138 of the N.I. Act and if a case is made out before the learned Appellate Court and if considered as an exceptional case, the learned Appellate Court is not bound to pass any order of 20% deposit of money. It is further submitted that such order if could be found is unjust and imposing such conditions would amount to deprivation of the right to Appeal of the applicant, exception could be made by the reasons which should be specifically recorded. 6. It is also submitted that it has been brought to the notice of the learned Appellate Court that the complainant is dealing in finance. 6. It is also submitted that it has been brought to the notice of the learned Appellate Court that the complainant is dealing in finance. Further telephonic conversation and evidence on record reveals that the brothers are dealing under Yadav Finance Limited and are lending money to people on a higher rate of interest. It is further submitted that the evidence on record was noted at Exhibit 56 of the payment of money and against an amount of Rs.18,00,000/-, Rs.35,00,000/- has been recovered from the present revisionist and when the applicant had gone for collecting the cheque, he was threatened to pay the money which complainant had given on assurance of revisionist to Sunil and Jatin. It is also submitted that it is a total case of extortion which has been brought on record. During the course of cross examination, the Bank Pass Book and Income Tax returns were asked for to verify the financial status and the ability of lending money, of the complainant, but he had refused to produce the same. It is further submitted that the defence has been raised before the learned trial Court, but inspite of that, the sentence followed. The said fact was brought to the notice of the learned Appellate Court, where aggrieved by the conviction and sentence, the Appeal has been preferred. It is also submitted that exceptional case was pleaded, inspite of that the order of deposit of 20% of fine and compensation amount has been ordered. 7. Countering the above arguments, learned Advocate for the complainant Mr. Ashish M. Dagli submitted that as per the evidence produced on record, the learned trial Court has convicted the accused and in support of the facts brought to the notice of the learned Appellate Court, the order has been passed of deposit of 20% amount which is only after consideration of the case from both the sides. It is further submitted that the order is legal and justifiable since the Appeal would take its own time and thus, the provisions of Section 148 of the N.I. Act is to be invoked by the learned Appellate Judge so that the complainant would get the benefit of the cheque amount and such amount if deposited would be helpful to the complainant for his own business purpose. 8. Heard learned Advocates appearing for the respective parties and perused the records of the case. 8. Heard learned Advocates appearing for the respective parties and perused the records of the case. In the case of Jamboo Bhandari (supra), the case of Surinder Singh Deswal Alias Colonel S.S. Deswal and Others v. Virender Gandhi and Another, (2019) 11 SCC 341 was taken into consideration wherein observations were referred to and Paragraph 8 of the decision in the case of Surinder Singh Deswal (supra) reads as under: “8. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the NI 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 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, 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 file by the appellant-accused under Section 389 CrPC 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 Section 148 of the NI Act, but also Section 138 of the NI Act. The 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 dishonour 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. 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.” 9. In the case of Jamboo Bhandari (supra), after noting the observations in Surinder Singh Deswal (supra), it was observed by the Hon’ble Apex Court in Paragraph 7 as under: “7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.” 10. The Hon’ble Apex Court has noted that when a prayer is made under Section 389 of Cr.P.C. before the learned Appellate Court, it would be open for the Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing condition of deposit of 20% of the fine/compensation amount. Thus, it has been specified that it is not mandatory for the learned Appellate Court to pass an order for the compulsory deposit of 20% of the cheque amount. 11. Thus, it has been specified that it is not mandatory for the learned Appellate Court to pass an order for the compulsory deposit of 20% of the cheque amount. 11. Here in this case, the present revisionist could show to this Court, the facts on record as could be found through the evidence, i.e. the admission of the complainant of having received certain money and the fact of the defence pleaded that more than the due amount, has already been recovered by the complainant and the cheque which was deposited was misused. Further, the complainant could not prove on record the financial status and the ability to lend the money. In addition, the telephonic conversation has been proved on record about the payment made by the complainant. 12. In the decision of Rakesh Ranjan Shrivastava v. State of Jharkhand and Another, (2024) 4 SCC 419 , the Hon’ble Apex Court had dealt with the provision of Section 148 of the N.I. Act and the power which has been entrusted to the learned Appellate Court. The Hon’ble Apex Court thus held that the ground of interim compensation under Section 143A read with Section 148(1) proviso (w.e.f. 1-9-2018) and Sections 138, 139 and 143(1), for grant of interim compensation under Section 143-A is directory in nature. 13. After having considered the submissions and referring to the decision in the case of Surinder Singh Deswal (supra), the Hon’ble Apex Court has summarized the conclusion which is reproduced herein-as-under: “27. Subject to what is held earlier, the main conclusions can be summarised as follows: 27.1. The exercise of power under sub-section (1) of Section 143A is discretionary. The provision is directory and not mandatory. The word “may” used in the provision cannot be construed as “shall.” 27.2. While deciding the prayer made under Section 143-A, the court must record brief reasons indicating consideration of all relevant factors. 27.3. The broad parameters for exercising the discretion under Section 143-A are as follows: 27.3.1. The Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application. The financial distress of the accused can also be a consideration.27.3.2. A direction to pay interim compensation can be issued, only if the complainant makes out a prima facie case. 27.3.3. The financial distress of the accused can also be a consideration.27.3.2. A direction to pay interim compensation can be issued, only if the complainant makes out a prima facie case. 27.3.3. If the defence of the accused is found to be prima facie plausible, the Court may exercise discretion in refusing to grant interim compensation. 27.3.4. If the Court concludes that a case is made out to grant interim compensation, it will also have to apply its mind to the quantum of interim compensation to be granted. While doing so, the Court will have to consider several factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant, etc. 27.3.5. There could be several other relevant factors in the peculiar facts of a given case, which cannot be exhaustively stated. The parameters stated above are not exhaustive.” 14. In view of the conclusion of the Hon’ble Apex Court in context of Section 143-A of the N.I. Act, it was observed in discretionary exercise of power, the word “may” used in the petition cannot be considered as “shall” and while deciding the prayer under Section 143-A, the Court must record reasons indicating condition of all relevant factors. It has been noted that the financial distress of the accused can also be considered while referring to the prima- facie merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply. It has been noted that the direction to pay interim compensation can be issued only if the complainant makes a prima-facie case and if the defence of the accused is found to be plausible, the Court may exercise discretion in refusing to grant interim compensation. 15. The impugned order in both the matters does not reflect any reasons of the learned Judge to come to the conclusion for exercising discretion as referred to in the cases of Jamboo Bhandari (supra) and Rakesh Ranjan Shrivastava (supra). The learned Appellate Court is required to apply its mind to observe merits of the case while also considering the defence pleaded and the financial distress of the accused is also to be considered as one of the consideration. It is not mandatory for the learned Appellate Court to direct payment of interim compensation. 16. The learned Appellate Court is required to apply its mind to observe merits of the case while also considering the defence pleaded and the financial distress of the accused is also to be considered as one of the consideration. It is not mandatory for the learned Appellate Court to direct payment of interim compensation. 16. Here in the above cases, the relevant evidence has been shown on record where the learned Court has not taken into consideration the facts on record and hence, the orders impugned are perverse and are required to be quashed and set aside. 17. In the result, the orders dated 03.05.2024 passed below Exhibit 1 in Criminal Appeal Nos. 293 of 2024 and 294 of 2024 by the learned 8th Additional Sessions Judge, Rajkot are quashed and set aside. 18. The applications are allowed in the aforesaid terms. Rule is made absolute. Direct Service is permitted.