2024 TaxPub(CL) 53 (MP-HC)
NEGOTIABLE INSTRUMENTS ACT, 1881
Section
138
Code
of Criminal Procedure, 1973, - Section 357
Irrespective of provisions of section 357(2) of Cr.P.C., pending appeal
before Appellate Court, challenging order of conviction and sentence under
section 138, the Appellate Court is conferred with power to direct petitioner
to deposit 20% of compensation amount, revision petition against the order
was dismissed.
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Dishonour of cheque - Revision petition
against direction to deposit 20% of compensation amount - Suspension of jail
sentence being contrary to section 357(2) of Cr.P.C - Whether condition of
deposit of 20% compensation amount can be imposed by Appellate Court
Trial Court passed order conviction and sentence
against petitioner for offence under section 138 of N.I. Act. Appellate Court
suspended the jail sentence of the petitioner on the condition that he should
deposit 20% of compensation amount, i.e., Rs. 1,91,500 within the period of one
month from the date of order passed by the trial court. The petitioner filed
revision petition against the order on the ground that such condition could not
have been imposed by appellate court while suspending the jail sentence as the
same is contrary to section 357(2) of Cr.P.C. Held: Opening words
of amended section 148 of the N.I. Act are 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, the Appellate Court is conferred with the power to direct the petitioner
to deposit such sum pending appeal which shall be a minimum of 20% of the fine
or compensation awarded by the Trial Court. Therefore, the impugned order
passed by the first appellate court appears to be just and proper which does
not suffer from any illegality or irregularity. Thus, the petition against the
order was dismissed.
REFERRED : Surinder Singh Deswal
alias Col. S.S. Deswal v. Virender Gandhi AIR 2019 SC 2956 : 2019 TaxPub(CL)
0688 (SC)
FAVOUR : Against the petitioner
A.Y. :
IN THE MADHYA PRADESH HIGH COURT
ANIL VERMA, J.
Suman Kukreja v. Vikas
Transport
Criminal Revision No.
609 of 2023
19 December, 2023
Applicant by: Vijay Kumar Asudani, Advocate
Respondent by: Pankaj Soni, Advocate
This revision petition under
section 397 read with section 401 of Cr.P.C. has been filed by applicant being
aggrieved by impugned Order, dated 19-1-2023 passed by 20th Additional
Sessions Judge Indore whereby the appellate court while passing order in an
application under section 389 Cr.P.C. against the order of conviction and
sentence under section 138 of Negotiable Instruments Act suspended the jail sentence
of applicant on the condition that the applicant shall deposit 20% of the
compensation amount, i.e., Rs. 1,91,500 within the period of one month from the
date of order passed by the trial court.
2. Learned counsel for applicant submits that such condition could not
have been imposed by appellate court while suspending the jail sentence as the
same is contrary to section 357(2) of Cr.P.C. In support of his submission,
learned counsel placed reliance upon order of Bombay High court in the case of Ajay
Vinodchandra Shah v. State of Maharashtra reported in 2019(4) MHLJ 705 :
2019 TaxPub(CL) 0550 (Bom-HC).
3. On the other hand learned counsel for respondent opposes the prayer
by submitting that the impugned order passed by the first appellate court is
according to law and no interference is required. He has placed reliance upon
judgment of Hon'ble Apex court in the case of Surinder Singh Deswal alias
Col. S.S. Deswal v. Virender Gandhi reported in AIR 2019 SC 2956 : 2019
TaxPub(CL) 0688 (SC).
4. Heard learned counsel for the parties and perused the record.
5. From perusal of the record of the trial court as well as the
impugned order passed by the first appellate court, it appears that under
section 138 of Negotiable Instruments Act, there is a specific provision that
court has empowered to punish the accused with jail sentence which may be
extended to two years or with fine which may extend to twice the amount of the
cheque or with both.
6. In the instant case the amount of disputed cheque is Rs. 4,79,183
and total payable amount with interest is 9,57,381. The Hon'ble Apex court in
the case of Surinder Singh Deswal (supra) has held as under :--
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 application filed b y 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 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 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'.
10. 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.
In view of the above and for the
reasons stated herein above, impugned Judgment and Order passed by the High
Court does not call for any interference.
7. In view of the law laid down by the Hon'ble Apex court, the first
appellate court is conferred with the power to direct the applicant to deposit
such amount pending appeal which shall be minimum 20% of fine or compensation
awarded by the trial court.
8. Therefore, the impugned Order, dated 19-1-2023 passed by the
first appellate court appears to be just and proper which does not suffer from
any illegality or irregularity.
9. Hence this criminal revision petition is accordingly dismissed by
affirming the order passed by the first appellate court. The applicant is
directed to deposit the said amount before the trial court within a period of
one month from the date of receipt of certified copy of this order.
Registry is directed to send the
record of the court below.