Virendra Singh Chauhan v. State of UP and another) under Section
Case Details
Neutral Citation No. - 2024:AHC:131215 (Sl.No.47) Court No. - 79 Case :- APPLICATION U/S 482 No. - 18455 of 2024
Legal Reasoning
Applicant :- Virendra Singh Chauhan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ishir Sripat,Siddharth Agrawal Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J. 1. Heard Sri Siddharth Agrawal, learned counsel for the applicant and Sri Sunil Kumar Kushwaha, learned AGA for the State. 2. The instant application u/S 482 Cr.P.C. has been filed by the applicant seeking quashing of the order dated 10.4.2024 in Criminal Appeal NO.42 of 2024 (Virendra Singh Chauhan vs. State of UP and another) under Section 138 N.I. Act, pending in the court of Additional Sessions Judge/FTC-2, Gautam Buddh Nagar. 3. Learned counsel for the applicant submits that the applicant herein has been convicted for the offence under Section 138 of N.I. Act and he has been sentenced to undergo one year's simple imprisonment along with fine of Rs.22 lakhs. He has filed the appeal before the appellate court under Section 374 Cr.P.C. read with Section 148 of the N.I. Act and as per the provisions of Section 148 (1) of the N.I. Act, the appellate court has imposed condition to deposit 20% of the fine amount within a period of 60 days. However, learned counsel for the applicant submits that he could not deposit the said amount and the instant application has been filed against the same. In the meantime, he has also approached the appellate court seeking time on the ground that he is making arrangement of said amount and he was already granted time by the appellate court on 1.7.2024 to deposit the 20% of the amount by 9.7.2024, but till date, no deposit has been made. Learned counsel for the applicant further submits that the applicant is a retired defence personnel and is getting a meager amount of pension and he has no means to arrange the fund, therefore, he seeks exemption. 4. Having heard the submissions so made by learned counsel for the applicant, it would be relevant to note the provisions of Section 148 of the N.I. Act, which read as under: "Section 148. Power of Appellate Court to order payment pending appeal against conviction- 1. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 percent of the fine or compensation awarded by the trial Court: Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143A. 2. The amount referred to in sub-section (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 cause 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." 5. In Surinder Singh Deswal Alias Colonel S.S. Deswal and others : (2019) 11 SCC 341, the Apex Court has held 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 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 by 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 amend 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. (Emphasis supplied) 6. In Jamboo Bhandari vs. M.P. State Industrial Development Corporation Ltd. and others : 2023 LiveLaw (SC) 776, the Apex Court has held as under: "6. What is held by this Court is that a purposive interpretation should be made of Section 148 NI Act. Hence, normally, the appellate court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the appellate court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded." 7. The trial court has imposed a fine of Rs.22 lakhs against the applicant herein. 20% of the same would come to Rs.4,40,000/- and admittedly, the applicant is a retired defence personnel and getting a regular pension, therefore, this Court does not find any special circumstance for exercising the discretion as directed by the Apex Court. 8. In view thereof, this Court does not find any good reason to entertain the instant application as the applicant has failed to demonstrate any special circumstance, which may warrant the exercise of discretionary power by the appellate court or by this Court. 9. Accordingly, this application lacks merit and is hereby dismissed. Order Date :- 13.8.2024 LN Tripathi (Anish Kumar Gupta,J.)