2024 TaxPub(CL) 53 (MP-HC)

NEGOTIABLE INSTRUMENTS ACT, 1881

Section 138

Code of Criminal Procedure, 1973, - Section 357

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.