Suresh Chand v. Dee Deep Chand, wh , whereby, learned Appellate Court Court directed t
Case Details
CRM-M M-28543-2025 1 - IN THE HIGH COURT OF PUN IN AT CHANDIG F PUNJAB AND HARYANA NDIGARH 151 2025 CRM-M-28543-2025 Decided on : 22.05.202 .2025 SURESH C ESH CHAND …. PETITIONER DEEP CHAN CHAND …. RESPONDENT V/S CORAM: AM: HON'BLE MR. JUSTICE SA CE SANJAY VASHISTH Present : Mr.Pankaj Maini, Advocate for the petitioner. Mr. Akashdeep Singh, Advoca for the respondent. dvocate *** SANJAY V JAY VASHISTH, J. (Oral) 1. Prayer in the present petition f f BNSS, tition filed under Section 528 of BNSS 2023, is f , is for quashing of the impugned pugned orders dated 17.03.2025 an and 24.04.2025 .2025 (Annexure P-4), passed by lea by learned Additional Sessions Judg s Judge, Palwal, in C , in Criminal Appeal No.44 of 202 f 2025, titled as ‘Suresh Chand v. Dee Deep Chand, wh , whereby, learned Appellate Court Court directed the petitioner to depos deposit 20% of the of the total compensation amount to nt to respondent herein. 2. Learned counsel for the petitio petitioner has stated that petitioner wa ner was prosecuted cuted in a complaint under Section 1 tion 138 of the Negotiable Instrumen ruments Act, 1881 1881 (for short, ‘the Act’) and he nd he was convicted by learned Su ed Sub Divisional sional Judicial Magistrate, Palwal , un , under Section 138 of the Act, vid ct, vide judgment o ment of conviction dated 17.02.202 02.2025 and order of sentence date e dated 18.02.2025 .2025 (P-2) and sentenced to unde undergo simple imprisonment for t for a Anju Goel 2025.05.28 15:06 I attest to the accuracy and integrity of this document Chandigarh CRM-M M-28543-2025 2 - period of d of eight months and was also o also ordered to pay compensation ation of Rs.30,00,00 0,00,000/- to the complainant. Counsel further submits that s that challenging the judgment date t dated 17.02.2025 .2025 (P-2), petitioner filed an app n appeal before the Court of learne learned Sessions Ju ions Judge, Palwal and thereupon le pon learned Appellate Court vide i vide its impugned gned orders dated 17.03.2025 an 5 and 24.04.2025 (Annexure P- -4), suspended ended the order of sentence qua petitio petitioner, subject to the deposit 20% o 20% of the compen ompensation amount. Due to the fina e financial constraints, petitioner faile er failed to comply w mply with the orders dated 17.03.2025 3.2025 and 24.04.2025 (Annexure P- -4). However, , counsel submits that even otherw otherwise also, impugned orders date rs dated 17.03.2025 .2025 and 24.04.2025 (Annexure P- -4) passed by the learned Appella ppellate Court is in t is in violation of the law settled by H d by Hon’ble Supreme Court in Jambo mboo Bhandari ari v. M.P. State Industrial Deve Development Corporation Ltd. an . and others, 20 , 2024(1) SCC (Cri) 90, wherein herein it has been held that whi t while considering idering the prayer under Section 389 o 389 of the Cr.P.C. of an appellant wh ant who has been c een convicted for offence under Sec er Section 138 of the Act, it is alway always open for th r the Appellate Court to consider, w ider, whether the appeal before it, is a it, is an exceptional ptional case or not, which warrants gra nts grant of suspension of sentence, b nce, but without im out imposing the condition to deposi deposit 20% of the fine/compensatio ensation amount. An nt. And, if the Appellate Court com omes to the conclusion that it is a it is an exceptional ptional case, the reasons for coming oming to the said conclusion must b must be recorded, w ded, which is missing in the present resent case. It is submitted that learne learned Court belo t below has not appreciated the the facts of the case and oth d other circumstanc stances of the petitioner, as per m per mandate of the Hon’ble Suprem upreme Anju Goel 2025.05.28 15:06 I attest to the accuracy and integrity of this document Chandigarh CRM-M M-28543-2025 3 - Court in Ja pra). Jamboo Bhandari’s case (supra). 3.
Legal Reasoning
`8' of the decision of this Court in the ca e case of Surinder Singh Deswal Ali 11 SCC 341 reads thus: - l Alias Colonel S.S. Deswal and Others (201 (2019) "8. Now so so far as the submission on behalf of of the appellants th ts that even considering the language used used in section 148 of the NI Act as , amended, the appellate cou court "may" order the appellant to depo deposit such sum whi which shall be a minimum of 20% of the f he fine or compensa ensation awarded by the trial court and nd the word used is d is not "shall" and therefore the discretion etion is vested with th ith the first appellate court has construed it d it as mandatory, w ry, which according to the learned Sen Senior Advocate for for the appellants would be contrary to to the provisions of s of section 148 of the NI Act as amended nded is concerned, co d, considering the amended section 148 of of the NI Act as a s a whole to be read with the Statement ent of Objects and R nd Reasons of the amending section 148 of of the NI Act, the w the word used is "may", it is generally to to be construed as as a "rule" or "shall" and not to direct rect to deposit by the y the appellate court is an exception for wh which special reaso asons are to be assigned. Therefore amend ended Anju Goel 2025.05.28 15:06 I attest to the accuracy and integrity of this document Chandigarh CRM-MM-28543-2025 5 - section 148 of the NI Act confers power upon on the appellate cou court to pass an order pending appeal eal to direct the ap e appellant-accused to deposit the sum wh which shall not be l be less than 20% of the fine or compensati nsation either on a n an application filed by the origin riginal complainant ant or even on the application filed by by the appellant-acc accused under section 389 Cr.P.C., 1973 3 to suspend the the sentence. The aforesaid is required to to be construed con considering the fact that as per the amend ended section 148 of the NI Act, a minimum of 20% of the f the fine or compensat nsation awarded by the trial court is direc irected to be deposite osited and that such amount is to be deposi posited within a perio period of 60 days from the date of the order, der, or within such fu ch further period not exceeding 30 days as m as may be directed b ted by the appellate court for sufficient cau t cause y shown by the appellant. Therefore, if amend ended section 148 of the NI Act is purposively interpreted eted in section 148 of the NI Act, but also section 138 of the the NI Act. The Nego Negotiable Instruments Act has been amend ended from time to e to time so as to provide, inter alia, spee speedy disposal of ca of cases relating to the offence of the dishono honour of cheques. S es. So as to see that due to delay tactics by by the unscrupulous lous drawers of the dishonoured cheques due due to easy filing o g of the appeals and obtaining stay in in the proceedings, ngs, an injustice was caused to the payee o ee of a dishonoured c red cheque, who has to spend considerable ti le time and resource ces in the court proceedings to realise ise the value of the c the cheque and having observed that such de h delay has comprom romised the sanctity of the cheque transactio ctions. Parliament ha nt has thought it fit to amend section 148 of of the NI Act. There herefore, such a purposive interpretation wou would be in further rtherance of the Objects and Reasons of of the amendment nt in section 148 of the NI Act and a d also section 138 of the NI Act. What is held by thi 6. should be made of section Appellate Court will be justifi provided in Section 148. How satisfied that the condition of such a condition will amount appellant, exception can be m this Court is that a purposive interpretati etation ction 148 of the N.I. Act. Hence, norma rmally, ustified in imposing the condition of deposit osit as However, in a case where the Appellate Cour ourt is n of deposit of 20% will be unjust or imposi posing ount to deprivation of the right of appeal of l of the rded. be made for the reasons specifically recorded Anju Goel 2025.05.28 15:06 I attest to the accuracy and integrity of this document Chandigarh CRM-M M-28543-2025 6 - We disagree with th 7. Therefore, when App section 389 of the Cr.P.C., 19 for offence under section 138 Appellate Court to consider warrants grant of suspension of deposit of 20% of the fine/ the Appellate Court comes to case, the reasons for coming t 8. The submission of the complainant is that neither High Court , there was a plea may be made in these cases a 20% of the amount be dispen was not made by the appellan consider the said plea. 9. applies under section 389 sentence, he normally appli sentence without any condit sought by the appellants, the in exception or not. 10. In these cases, both th proceeded on the erroneous amount is an absolute rule wh The learned counsel 11. states that the appellants h amount. However, this is the m 12. In these circumstances, High Court and restore the before the High Court . We di Bench of the High Court on High Court to fix a date for contesting parties are before High Court to issue a notic High Court , after hearing the amount is already deposited o that 20% of the amount is no Revision Petitions in the light Till the disposal of the resto passed by this Court ordering operate. under Appellate Court considers the prayer und nvicted ., 1973 of an accused who has been convic for the 138 of the N.I. Act, it is always open for which der whether it is an exceptional case wh ndition sion of sentence without imposing the conditi rlier, if fine/compensation amount. As stated earlier es to the conclusion that it is an exception ptional ed. ing to the said conclusion must be recorded. riginal f the learned counsel appearing for the origin ore the ther before the Sessions Court nor before ception plea made by the appellants that an excepti inimum ses and the requirement of deposit or minim prayer spensed with. He submits that if such a pray urts to ellants, there were no reasons for the Courts the above submission. When an accus of the Cr.P.C., 1973 for suspension applies for grant of relief of suspension ndition. Therefore, when a blanket order the Court has to consider whether the case fa ccused ion of sion of rder is se falls
Arguments
Mr. Akashdeep Singh, Advoc Advocate, who appearing on advanc advance notice, argu e, argues that once the undertaking ha ing has been given by the petitioner oner for making pay ng payment of the compensation amo n amount, he cannot wriggle out of th t of the same by ch by challenging the order before this C this Court. 4. After hearing learned counsel ounsel for the parties and perusing th sing the record, it d, it is apparent that sentence of t e of the petitioner was suspended b ded by learned Ap Appellate Court subject to the dep he deposit of 20% of the compensatio ensation amount aw nt awarded by learned trial Court. Ho urt. However, petitioner did not comp comply with the sam the same. 5. This Court is of the view that that dispute raised through the prese present petition can ion can be decided in limine and wit nd without calling the other side her de here, because the use the way this Court intends to di to dispose of the present petition, n tion, no prejudice w dice would be suffered by the complai omplainant qua his rights. 6. This Court finds that the plea e plea of the petitioner is that impugne pugned orders date rs dated 17.03.2025 and 24.04.2025 (A 025 (Annexure P-4), passed by learne learned Additional tional Sessions Judge, Palwal, is w , is without adhering to the direction rections issued by t d by the Hon’ble Apex Court in Jam Jamboo Bhandari’s case (supra), ra),as also in the in the case ofMuskan Enterprises an s and anotherv. The State of Punja unjab and anothe other, 2024 SCC Online SC 4107 : 07 : Law Finder Doc Id #2680202’ 02’. 7. The Hon’ble Apex Court in rt in Jamboo Bahndari case (Supra upra) and Muska uskan Enterprises case (Supra) has laid down certain paramete ameters while consi e considering Section 148 of the Act fo Act for the purpose of interpretation. tation. It has been he een held that the object of Section 14 ion 148 of the Act is not mandatorily torily to Anju Goel 2025.05.28 15:06 I attest to the accuracy and integrity of this document Chandigarh CRM-M M-28543-2025 4 - be followed llowed rather, it is directive and the d the direction to pay or deposit 20% o 20% of the compe compensation amount, which is max is maximum, is to be passed by th by the concerned erned Court after examining the fact e facts and circumstances of the cas the case re it. before it. 8. In Jamboo Bhandari’s case case (supra), the view taken by th by the Hon’ble A ble Apex Court in an earlier case, case, i.e. Surinder Singh Deswal wal v. Virender G er Gandhi, (2019) 11 SCC (Cri) (Cri) 461’, has also been discusse scussed, wherein, th ein, the object and reason of the amen e amendment in Section 148 of the A the Act was discuss discussed. The observations made in p de in para Nos. 5 to 12 of the judgme dgment in Jamboo B mboo Bhandari’s case (supra) are repro e reproduced herebelow: “5. The paragraph `8' o
Decision
th the Sessions Courts and the High Court ha have eous premise that deposit of minimum 20 20% ption. e which does not accommodate any exception stage, sel appearing for the appellants, at this sta ts have deposited 20% of the compensati nsation ourt . the matter to be examined by the High Court of the ces, we set aside the impugned orders of ellants the revision petitions filed by the appella roster e direct the parties to appear before the ros ble the on 09.10.2023 in the morning to enable As the for hearing of the revision petitions. As for the fore the Court , it will not be necessary for g. The notice of the date fixed for hearing. T of the g the parties, will consider whether 20% of clusion ted or not. If the Court comes to the conclusi ine the is not deposited, the Court will re-examine gment. light of what we have observed in this judgme order restored Revision Petitions, the interim ord inue to ering suspension of sentence will continue 9. Again, in the case of of Muskan Enterprises’s cas case (supra),Ho Hon’blethe Apex Court has notic noticed certain additional parameter ameters, which are r h are required to be looked into in such in such like cases, which reads thus: Anju Goel 2025.05.28 15:06 I attest to the accuracy and integrity of this document Chandigarh CRM-MM-28543-2025 7 - “27. We may take the di e discussion a little forward to emphasi hasize our point of view. The re There could arise a case before the t Appellate Court where suc such court is capable of forming g an opinion, even in course of e of considering as to what would be t be the appropriate quantum of fine f fine or compensation to be kept in depos eposit, that the impugned conv onviction and the consequent senten ntence recorded/imposed by the the trial court is so wholly incorrect a ct and erroneous that it is only a ly a matter of time for the same to be s be set aside and that ordering ring a deposit would be unnecessar ssarily burdensome for the appella pellant. Such firm opinion could be form formed on a plain reading of the or he order, such as, the conviction might ha t have been recorded and senten ntence imposed without adherence to t to the mandatory procedural requ requirements of the N.I. Act prior to/at t /at the time lodging of the compl mplaint by the complainant rendering t ng the or proceedings vitiated, or the trial court might have reject ejected admissible evidence from b om being led and/or relied on inadmissib issible evidence which was permi ermitted to be led, or the trial court mig might have recorded an order der of conviction which is its ipse dix dixit, without any assessment/ana t/analysis of the evidence and/or totally m ly mis- appreciating the evidence o nce on record, or the trial court might ha t have passed an order failing to g to disclose application of mind and/ and/or sufficient reasons thereby reby establishing the link between t en the appellant and the offence, a ce, alleged and found to be proved, or th or that the compensation awarded rded is so excessive and outrageous that that it fails to meet the proportion rtionality test : all that, which would evin evince an order to be in defiance o ce of the applicable law and, thus, liable able to be labelled as perverse. rse. These instances, which are mere merely illustrative and not exhaust austive, may not arise too frequently but but its possibility cannot be comp ompletely ruled out. It would amount to nt to a travesty of justice if exerci ercise of discretion, which is permitted tted by the legislature and could in ld indeed be called for in situations such uch as these pointed out above, or e, or in any other appropriate situation, tion, is not permitted to be exercis rcised by the Appellate Court by a judic udicial interpretation of 'may' bein being read as 'shall' in sub-section (1) (1) of Section 148 and the aggrie ggrieved appellant is compelled to make ake a deposit of minimum 20% o % of the fine or compensation awarded ded by Anju Goel 2025.05.28 15:06 I attest to the accuracy and integrity of this document Chandigarh CRM-MM-28543-2025 8 - the trial court , notwith twithstanding any opinion t that the t Appellate Court might have have formed at the stage of ordering depo deposit as regards invalidity of of the conviction and sentence und under challenge on any valid grou ground. Reading 'may' as 'may' leads to t to the text matching the context a ext and, therefore, it seems to be just a st and proper not to denude the the Appellate Court of a limited discreti cretion conferred by the legislatur ature and that is, exercise of the power wer of not ordering deposit altoge together albeit in a rare, fit and appropria opriate case which commends to th to the Appellate Court as exceptional. Wh . While there can be no gainsayin saying that normally the discretion of t of the Appellate Court should lea lean towards requiring a deposit to to be made with the quantum of s of such deposit depending upon the factu factual situation in every individua idual case, more so because an order und under challenge does not bear t ar the mark of invalidity on its forehea ehead, retention of the power of s of such court not to order any deposit in sit in a given case (which in its v its view and for the recorded reasons ons is exceptional) and calling for g for exercise of the discretion to not ord t order deposit, has to be concede ded. If indeed the legislative intent we t were not to leave any discretion etion to the Appellate Court , there is lit is little reason as to why the legisl egislature did not also use 'shall' instead tead of 'may' in sub-section (1). S 1). Since the self-same section, read as d as a whole, reveals that 'may' h y' has been used twice and 'shall' thrice, rice, it must be presumed that the the legislature was well and truly aware are of the words used which form form the skin of the language. Reading a ng and understanding the words us ds used by the legislature in the literal sen l sense does not also result in man manifest absurdity and hence tinkering w g with the same ought to be avoi avoided at all costs. We would, therefo refore, read 'may' as 'may' and 'sha 'shall' as 'shall', wherever they are used used in Section 148. This is because ause, the words mean what they say. 28. In such view of the ma e matter and for the foregoing reasons, ns, we are unhesitatingly of the the view that the impugned order of t of the High Court declining to en o entertain the subsequent petition und under Section 482, Cr. PC of th of the appellants is unsustainable in la law. However, we do not consid onsider the need to remit the matter to t to the High Court for considerati eration of the subsequent petition und under Section 482, Cr. PC; in ; instead, in our view, justice would uld be Anju Goel 2025.05.28 15:06 I attest to the accuracy and integrity of this document Chandigarh CRM-M M-28543-2025 9 - sufficiently served if the S he Sessions Court re-examines the issue sue of deposit being required to b to be made by the appellants in the light light of the law laid down in in Jamboo Bhandari (supra) and t d the observations made hereinab einabove. 29. Consequently, the imp impugned order of the High Court dat dated 18th May, 2024 and the the Sessions Court's order dated 17 17th October, 2022, stand set set aside. The matter is remitted to t to the Sessions Court to re-exam xamine the issue of ordering depos eposit. Whether sufficient ground h nd has been made out by the appellants ants to persuade the Sessions Cour ourt not to order any deposit is left entire ntirely to its discretion and satisfac tisfaction. We do not express any opinion ion on the plea that the appellants lants have sought to advance before us, le us, lest any party seeks to derive an pen. e any advantage. All points are left open. 10. This Court has already consid considered the similar plea in CRM- -M- 3861-2025 025, titled as, “M/s Devgan Rice a ice and General Mills v. M/s Jasb Jasbir Bhullar Tr r Trading Company and another’ ’ (D.O.D.: 28.01.2025), wherein th rein the non-speakin speaking order, without noticing th ing the directions passed in Jambo mboo Bhandari’s ari’s case (supra) and Muskan E an Enterprises’s case (supra), wa was assailed an led and same has been partly allowed lowed by issuing directions to re-decid decide the said iss aid issue again in accordance with th ith the law laid down by the Hon’b Hon’ble Apex Cour Court. 11. After examining the impugn pugned orders dated 17.03.2025 an 25 and 24.04.2025 .2025 (Annexure P-4) and in view of iew of the judicial precedents settled b ttled by Hon’ble A ble Apex Court in Jamboo Bhand andari’s case (supra) and Muska uskan Enterprises rises’s case (supra), without comm commenting anything on the merits o rits of the case, t case, the present petition is dispose disposed of and learned lower Cou r Court (Appellate ellate Court) is directed to re-exami examine the case in view of law la law laid Anju Goel 2025.05.28 15:06 I attest to the accuracy and integrity of this document Chandigarh CRM-M M-28543-2025 10 - down by th by the Hon’ble Apex Court in Jamb Jamboo Bhandari’s case (supra) an and Muskan En n Enterprises’s case (supra) and af d after granting an opportunity to th ty to the petitioner t ioner to make submissions regarding arding the exceptional circumstance stances, decide afre e afresh whether it is an appropriate priate case that warrants waiver of th r of the requiremen irement of deposit of 20% of the comp compensation awarded by learned tri trial Court. The directions given in the in the orders dated 17.03.2025 an 25 and 24.04.2025 .2025 (Annexure P-4) by learned A rned Appellate Court to the extent o xtent of depositing siting 20% of compensation, is set as set aside and to decide the said issu id issue again in vie in view of aforementioned observati ervations. As far as the bail during the p g the pendency of appeal is concerne ncerned, that would would not be subject to deposit of 20% of 20% compensation amount, until th until the already refe dy referred issue to the larger Bench b ench by this Court, vide its order date er dated 08.04.2025 .2025, passed in CRM-M-779-2025 a 2025 and CRM-M-8498-2025 is final s finally decided. 13. With the aforementioned obse d observations, present petition stand stands disposed o sed of. 14. Let copy of this order be er be sent to the Lower Court, fo urt, for information mation and necessary compliance. May 22, anju 2025 (SANJAY VASHISTH JUDGE ISTH) Whether spe Whether Rep speaking/reasoned: Reportable: Yes/No Yes/No Anju Goel 2025.05.28 15:06 I attest to the accuracy and integrity of this document Chandigarh