Research › Search › Judgment

Andhra High Court · body

2024 DIGILAW 45 (AP)

Inaganti Gandhi v. Mullapati Malkondaiah

2024-01-08

B.S.BHANUMATHI

body2024
JUDGMENT 1. This criminal petition under Sec. 482 CrPC is filed to quash the order, dtd. 27/3/2023, passed in Crl.M.P.No.22 of 2023 in Criminal Appeal No.66 of 2023 on the file of the Court of IV Additional Sessions Judge, at Nellore. 2. Heard Sri Narasimha Rao Gudiseva, learned counsel for the petitioner and Sri Ancha Panduranga Rao, learned counsel for the 1st respondent/complainant. 3. The facts leading to filing of the petition, are briefly as follows: The petitioner is the accused in C.C.No.402 of 2017 on the file of the Court of II Additional Judicial First Class Magistrate, Nellore, filed by the 1st respondent herein under Sec. 138 of the Negotiable Instruments Act, 1881. Pending the case, the accused filed petition in Crl.M.P.No.135 of 2022 to send exhibits P1 to P5, cheques, to a handwriting expert for opinion. The petition was dismissed by order, dtd. 16/12/2022. Aggrieved by the order, the accused preferred criminal revision in C.R.P.No.3 of 2023 on the file of the Court of IV Additional Sessions Judge, Nellore. The petition was dismissed on 20/2/2023. 4. Aggrieved by the said order, criminal petition in Crl. Petition No.1504 of 2023 was filed before this Court. An interim order was passed by this Court on 27/2/2023 granting stay of all further proceedings including appearance of the petitioner before the trial Court in C.C.No.402 of 2017 for a period of eight (8) weeks. According to the petitioner/accused, the said order was informed to the trial Court and a memo was filed on 1/3/2023 along with 'online daily status information' which indicated in column of 'Short Order' - 01 Notice stay'. On the said memo, the trial Court passed an order on 1/3/2023 which reads as follows: "Heard both sides. Perused the record. The matter in C.C.No.402/2017 was posted for judgment on 25/1/2023, but this Court received official memo on 24/1/2023 from the Hon'ble IV Additional District and Sessions Court, Nellore asked entire record in Crl.M.P.No.135/2022 in this case. Hence, this Court not pronounced judgment and posted time to time. Finally, this Court received record on 27/2/2023 and posted today for judgment as the matter is of 2017. On perusing the memo filed by the petitioner/accused that he preferred revision, but no stay granted by Hon'ble High Court of A.P., hence this Court felt that it is not necessary to stop the proceedings and inclined to go further. Finally, this Court received record on 27/2/2023 and posted today for judgment as the matter is of 2017. On perusing the memo filed by the petitioner/accused that he preferred revision, but no stay granted by Hon'ble High Court of A.P., hence this Court felt that it is not necessary to stop the proceedings and inclined to go further. Accordingly, the memo is closed/ answered in the interest of justice." 5. In spite of information regarding the stay granted by this Court, the trial Court pronounced the judgment on 1/3/2023 by convicting the petitioner. Hence, the accused preferred an appeal, vide Criminal Appeal No.66 of 2023 along with which he also filed Crl.M.P.No.22 of 2023 seeking to suspend the operation of the sentence imposed in C.C.No.402 of 2017. The appellate Court, vide order dtd. 27/3/2023, suspended the operation of the sentence alone subject to condition of depositing 20% of Rs.70, 00, 000.00 on or before 27/4/2023. 6. Aggrieved by the condition to deposit 20% of the amount, the petitioner/accused filed this petition contending that the said condition is onerous and it ought not to have been ordered. 7. The learned counsel for the petitioner submitted mainly that the condition to deposit is not mandatory and is discretionary as can be seen from the language of Sec. 148 of the Negotiable Instruments Act and it is only if the Court decides to impose such condition, the minimum amount to be ordered for deposit is 20%, but the appellate Court failed to exercise its discretion in the light of the facts and circumstances in this case, because the judgment of the trial Court is unsustainable in view of the order of stay granted by this Court. 8. On the other hand, the learned counsel for the 1st respondent submitted that a judgment passed in the absence of communication of the order of stay is valid and placed reliance on the decision in Seva Singh Vs. State, [1953] THE INDIAN LAW REPORTS 206. He further submitted that there is no communication of order of stay in the present case as is evident from the order on the memo and therefore, the appellate Court is not in error in directing to deposit 20% of the compensation amount. 9. State, [1953] THE INDIAN LAW REPORTS 206. He further submitted that there is no communication of order of stay in the present case as is evident from the order on the memo and therefore, the appellate Court is not in error in directing to deposit 20% of the compensation amount. 9. Since this petition is against the order directing deposit of the amount by exercising jurisdiction under Sec. 148 of the Negotiable Instruments Act, this Court is not inclined to examine the prayer whether the judgment passed by the trial Court is legal or not. 10. Sec. 148 of the Negotiable Instruments Act, 1881 reads as 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 Sec. 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty percent of the fine or compensation awarded by the trial Court. Provided that the amount payable under this subsec. shall be in addition to any interim compensation paid by the appellant under Sec. 143A. (2) The amount referred to in sub-sec. (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 case 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." 11. A perusal of the above provision in Sec. 148(1) indicates that it is the discretion of a Court in appeal to direct deposit of the amount since the word 'may' is used before the words 'order the appellant to deposit' and it is only if it decides to direct deposit of the amount, it is mandatory to direct 20% of the compensation amount. Whenever a court exercises discretion, reasons for the decision taken shall be recorded. Therefore, before passing any order under Sec. 148 of the Negotiable Instruments Act, the appellate Court is required to indicate the reasons for exercise of its discretion. 12. In the present case, since there is a serious dispute about the legality of the judgment passed by the trial Court while the order of stay was in force and the same is yet to be decided, the appellate Court is expected to give reasons as to why in spite of such ground taken in appeal, it is required to deposit the amount under Sec. 148 of the Act. But, the appellate Court in its brief order, merely by referring to Sec. 148(1) of the Act, directed the petitioner to deposit 20% of the compensation amount ordered by the trial Court. It is pertinent to mention the relevant portion of the order at paragraphs No.6 & 7 which are as follows: "6. In view of Amendment of Negotiable Instruments (Amendment) Act, 2018 (No.20 of 2018), dtd. 2/8/2018, Negotiable Instruments (Amendment) Act, 2015 (Act No.26 of 2015) (w.e.f 15/6/2015) under Sec. 148(1), Appellate Court has power to order payment pending appeal against conviction, since Sec. reads "Not withstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer against conviction under Sec. 138, appellate Court may order appellant to deposit such sum which shall be a minimum of twenty percent of the fine or compensation awarded by the trial Court." Considering the same, sentence alone imposed by trial Court is suspended. 7. In the result, petition is allowed by suspending the operation of sentence alone till disposal of the main appeal as imposed by the trial Court subject to deposit of 20% of the compensation amount into trial Court i.e., 20% out of Rs.70, 00, 000.00 on or before 27/4/2023. Failing which, the appellate Court will proceed as per law." 13. 7. In the result, petition is allowed by suspending the operation of sentence alone till disposal of the main appeal as imposed by the trial Court subject to deposit of 20% of the compensation amount into trial Court i.e., 20% out of Rs.70, 00, 000.00 on or before 27/4/2023. Failing which, the appellate Court will proceed as per law." 13. Therefore, it is apparent that the appellate Court has failed to give reasons in support of its order and probably under the impression that it is mandatory to direct deposit of amount, passed the impugned order. Time and again, the Constitutional courts held that giving reasons is the backbone of an order for its sustenance. Yet, there are many instances where Courts fail to record reasons making the order under challenge vulnerable for interference. 14. As such, for the above reasons, the impugned order needs to be set aside directing the appellate Court to dispose of the petition afresh. 15. In the result, the Criminal Petition is allowed. The order, dtd. 27/3/2023, passed in Crl.M.P.No.22 of 2023 in Criminal Appeal No.66 of 2023 is set aside and the appellate Court is directed to dispose of the petition afresh giving reasons. Pending miscellaneous petitions, if any, shall stand closed.