Nafr High Court
Case Details
1 2025:CGHC:39432 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2476 of 2025 • Dr. Manmohan Kumar Khanduja S/o Shri Dharampal Khanduja, Aged About 69 Years R/o House No. 36/6, Nehru Nagar (East) Bhilai, Civil, Tehsil And District Durg (C.G.) versus ... Petitioner
Legal Reasoning
• Ramesh Kothari S/o Late Shri Askaran Kothari, Aged About 60 Years Substituted By Manisha Kothari, W/o- Late Shri Ramesh Kothari, Aged About 55 Years, R/o Shanichari Bazar, Ganjpara, Durg, Tehsil And District Durg (C.G.) ... Respondent (Cause title taken from Case Information System) For Petitioner : Mr. Aditya Bhardwaj, Advocate. For Respondent : None. Hon’ble Shri Justice Sanjay Kumar Jaiswal Order on Board 07/08/2025 1. 2. Heard. The present petition has been filed by the petitioner under Section 528 of the BNSS, 2023 being aggrieved by the impugned order dated 11.06.2025 passed in Criminal Appeal No. 225/2025 by the Learned Second Additional Session Judge, Durg, District Durg (C.G.), whereby the learned Sessions Court has imposed a condition of depositing 20% of the compensation amount within 60 days while suspending the sentence, on an application preferred under Section 430 of BNSS, 2023. 3. The brief facts of the case are that the respondent/complainant filed a 2 complaint against the petitioner/accused under Section 138 of the Negotiable Instruments Act, 1881, alleging that the accused exploited their long-standing personal and familiar acquaintance to secure a loan of Rs.10,00,000/- for business purpose in Apollo Hospital, Bhilai. Despite executing a promissory note and issuing Cheque No. 498254 dated 30.10.2024, the accused failed to repay the loan, and the cheque was dishonored due to insufficient funds. Thereafter the complainant sent registered notice to the petitioner regarding the same despite that the amount was not paid, upon which a complaint under Section 138 of NI Act was filed before the learned learned Judicial Magistrate First Class, Durg, Chhattisgarh, after hearing both parties the learned JMFC passed order on 09.04.2025 in Criminal Case No.10869/2017, whereby convicted the appellant to one year of simple imprisonment and a compensation amount of Rs.10 lakhs which was directed to be paid within 60 days therefrom, with a default stipulation. Being aggrieved by the said order, the petitioner preferred Criminal Appeal No.225/2025 under Section 415 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 before the learned Second Additional Sessions Judge, Durg (CG), along with an application under Section 430 of BNSS, 2023, seeking suspension of sentence and grant of bail. The appellate court allowed the application and suspended the sentence and granted bail to the petitioner on the condition that he will deposit 20% of the compensation amount within 60 days. 4. Learned counsel for the petitioner contended that the word 'may' has been used in Section 148 of the N.I. Act and the Appellate Court has used its discretion, but has not given any reason for the same. The learned appellate court has committed grave error, while passing the impugned order dated 11.06.2025 and has wrongly imposed a condition of depositing 20% of the compensation amount while suspending the execution of order dated 09.04.2025. The learned Appellate court has without following the provisions 3 of the Code of Criminal Procedure, 1973 and without considering the facts material available on record passed the impugned order, hence it is liable to be quashed. 5. Since the issue before this Court hinges upon the interpretation of Section 148 of the N.I. Act, which was subsequently incorporated to the N.I. Act vide the Negotiable Instruments (Amendment) Act, 2018 (Act No. 20 of 2018), the relevant part thereof is reproduced hereunder:- Inserted by Act No.20 of 2018, w.e.f. 1-9-2018. ["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 section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court: Provided that………" (2)….. (3)….. Provided that …...] 6. Hon’ble Supreme Court in the matter of Jamboo Bhandari vs. M.P. State Industrial Development Corporation Ltd. & Ors., reported in (2023) 10 SCC 446, passed in Criminal Appeal No. 2741 of 2023 (@ SLP (Crl.) No.4927 of 2023) on 04.09.2023 held 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.” 7. 8. 9. 4 The Hon’ble Supreme Court in the matter of Muskan Enterprises & Anr. vs. State of Punjab & Anr., reported in (2024) SCC Online SC 4107, also followed the judgment passed in Jamboo Bhandari (supra) and set aside the impugned order of the High Court as well as the Sessions Court. In the case in hand, impugned order of the learned Appellate court does not disclose anything that the learned Appellate court considered whether the case is under the exception or not? i.e. whether it warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. In those circumstances, the impugned order of the learned Appellate court is set aside and the application filed by the petitioner under Section 430 of BNSS before the Appellate Court is restored. The learned Appellate Court shall reconsider the application afresh and dispose of the same with a fresh reasoned order, as early as possible. Till then, the execution of order dated 09.04.2025 passed by Judicial Magistrate First Class, Durg, District Durg (C.G.) in Criminal Case No.10869/2017 stands suspended. 10.
Decision
Accordingly, the CRMP is disposed of at the stage of admission. Sd/- (Sanjay Kumar Jaiswal) Judge DEEPTI JHA NIRALA Digitally signed by DEEPTI JHA NIRALA