Sandeep Kumar Gautam v. State) arising out of the order dated
Case Details
Neutral Citation No. - 2024:AHC:119562 HIGH COURT OF JUDICATURE AT ALLAHABAD (Sl.No.32) Court No. - 79 Case :- APPLICATION U/S 482 No. - 21938 of 2024 Applicant :- Sandeep Kumar Gautam Opposite Party :- State of U.P. and Another Counsel for Applicant :- Harsh Narayan Singh,Prashant Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
"5. The paragraph ‘8’ of the decision of this Court in the case of Surinder Singh Deswal Alias Colonel S.S. Deswal and Others1 reads thus: - “8. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the NI 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 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 NI Act as amended is concerned, considering the amended Section 148 of the NI Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the NI 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 NI 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 file by the appellant-accused under Section 389 CrPC to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the NI 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 1 (2019) 11 SCC 341 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 NI Act is purposively interpreted in Section 148 of the NI Act, but also Section 148 of the NI Act. The 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 dishonour 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. Parliament has thought it fit to amend Section 148 of the NI Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the NI Act and also Section 138 of the NI Act. 6. What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, 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. 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." 10. In view of the aforesaid interpretation by the Apex Court, though the provisions of Section 148 (1) of N.I.Act are of mandatory nature, however, it has liberally given the discretion to the appellate court to exempt the appellant in the exceptional circumstances from the deposit of 20% of the amount. In view of the aforesaid interpretation made by the Apex Court, this Court looking into the case of the applicant herein that the instant case was filed for dishonour of cheques amounting to Rs. 2,35,000/-, however, during the trial, the trial court has found the liability of the applicant only to the extent of Rs. 1,08,000/- and out of which Rs. 50,000/- has already been paid in view of the order dated 08.03.2022 passed by this Court in Application under Section 482 Cr.P.C. No.7960 of 2021, which was deposited by the applicant and was released in favour of opposite party no.2. 11. Therefore, in the special circumstances, at this stage, it would not be appropriate again asking the applicant herein to deposit further sum of Rs. 43,200/- as has been directed by the appellate court vide order dated 21.05.2024. 12. In view thereof, the aforesaid order dated 21.05.2024 is modified to the extent that the applicant herein shall not be liable to deposit 20% of the amount as directed by the appellate court and the appeal of the applicant shall be heard on merits, without such deposit. 13. With the aforesaid observation, the instant application is allowed to that extent. Order Date :- 25.7.2024 Ashish Pd. (Anish Kumar Gupta,J.)
Arguments
1. Heard Sri Prashant Kumar Singh and Sri Harsh Narayan Singh, learned counsel for the applicant and Sri Sandeep Chaudhary, learned AGA for the State. 2. The instant application under Section 482 Cr.P.C. has been filed against the order dated 21.05.2024 passed by the Sessions Judge, Chandauli, imposing condition to deposit a fine of Rs. 43,200/- for execution of the order dated 22.04.2024 in Criminal Appeal No. 20 of 2024 (Sandeep Kumar Gautam vs. State) arising out of the order dated 22.04.2024 passed by the Chief Judicial Magistrate, Chandauli in Complaint case No. 3534 of 2019 (Rajiv Singh vs. Sandeep Kumar Gautam) under Section 138 of the Negotiable Instruments Act (for short 'N.I. Act') , P.S. Mugalsarai, District Chandauli. 3. The grievance of the applicant is with regard to the impugned order dated 21.05.2024 passed by the appellate court in Criminal Appeal No. 20 of 2024 filed under Section 374 Cr.P.C. While admitting the appeal filed by the applicant herein, the appellate court vide order dated 21.05.2024 has directed the applicant herein to deposit the 20% of the awarded amount i.e. Rs. 43,200/- as condition for admission of appeal in accordance of Section 148 of the N.I. Act. 4. Learned counsel for the applicant relying upon the the judgment of Apex Court in Jamboo Bhandari vs. Madhya Pradesh State Industrial Development Corporation Limited, (2023) 10 SCC 446 submits that though the provisions of 148 (1) of the N.I. Act are of mandatory nature and gives no room to the appellate court to direct the deposit of less than 20% of the amount, but as has been held by the Apex Court in para 6 and 7 of the aforesaid judgment, it has been interpreted that if 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 in the aforesaid order. 5. Learned counsel for the applicant further submits that during the pendency of trial of the complaint case under Section 138 of the N.I. Act, the applicant has approached this Court by filing an application under Section 482 Cr.P.C. No. 27960 of 2021, whereupon the matter was referred to the mediation and the applicant was directed to deposit a sum of Rs. 50,000/-, which was deposited by the applicant, which has been duly reflected in the order dated 30.03.2022 passed by the Chief Judicial Magistrate in the aforesaid complaint case. Learned counsel for the applicant submits that the aforesaid amount has already been paid to the opposite party no.2 during the trial of the case, though the mediation failed. Learned counsel for the applicant further submits that the 20% amount of award has already been paid by the applicant to the opposite party no.2 and the liability as ascertained by the applicant has accessed by the trial court is only Rs.1,08,000/-, out of which Rs. 50,000/- has already been paid, which is an exceptional circumstances. If further amount of Rs. 43,200/- was to be paid by the applicant, nothing more will remain to contest in the appeal on the part of the applicant herein. In view thereof, he prays for modification of the order dated 21.05.2024 exempting the applicant herein from the condition of deposit of 20% as directed under Section 148 of the N.I. Act. 6. Learned AGA on the other hand submits that the provisions of Section 148(1) are of mandatory nature and the proviso to Section 148(1) of the N.I.Act specifically provides that, if any amount has been paid during the trial, this amount of 20% shall be in addition to that. However, in view of Section 148 (1) of N.I.Act as interpreted by Apex Court in aforesaid judgment in Jamboo Bhandari (supra), learned AGA submits that the appellate court can exempt or direct the deposit of less than 20%, looking at the special circumstances and peculiar case. 7. Having heard the rival submissions made by learned counsel for the parties, this Court has thoroughly gone through the record of the case. From the record of the case, it is apparent that the complaint case filed by the opposite party no.2 for dishonour of cheque of Rs. 2,35,000/-. However, during the trial, learned trial court has found the existence of the liability of the applicant only to the extent of Rs. 1,08,000/-. 8. Section 148 of N.I.Act is being reproduced herein below; "Section 148: Power of Appellate Court to order payment pending appeal against conviction. 148. (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 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." 9. The relevant portion of the aforesaid judgment in Jamboo Bhandari (supra) is being reproduced herein: