Ashok Kumar v. State of Uttarakhand and Others, whereby the application filed by the

Heard learned counsel for the parties.

2. By means of this C528 application, applicant has challenged the order dated 13.08.2024 passed by learned 2nd Additional Sessions Judge, Dehradun in Criminal Appeal No.41 of 2024, Ashok Kumar Vs. State of Uttarakhand and Others, whereby the application filed by the applicant i.e. 16 ([k) for exempting him for depositing 20% of the amount of compensation was rejected vide order dated 14.02.2024.

3. Applicant was convicted under Section 138 of the N.I. Act vide the judgment and order dated

19.01.2024 passed by learned Additional CJM Dehradun in Complaint Case No.2107 of 2019, Attar Singh vs. Ashok Kumar and sentenced to undergo six months’ simple imprisonment with fine of 1 Rs.10,90,000/-, with default stipulation of one month additional simple imprisonment. Thereafter, applicant preferred a Criminal Appeal No.41 of 2024, Ashok Kumar vs. Attar Singh & others, wherein while admitting the appeal vide order dated

14.02.2024, he was directed to deposit 20% of the compensation i.e. Rs.2,18,000/- within ten days. The said amount was not deposited. On application moved by applicant on 20.04.2024, he was given 30 days more time to deposit the 20% of the amount as stated above, but he failed to deposit the said amount and moved an application 16 ([k) exemption.

4. It is contended by learned counsel for the applicant that the Appellate Court vide order dated

14.02.2024 directed the applicant to deposit 20% of total amount of compensation, as per the mandate prescribed under Section 148 of the N.I. Act, which is reproduced 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 (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.” 2

5. It is also submitted by learned counsel for the applicant that the word ‘may’ used under Section 148 of the N.I. Act makes it a non-mandatory provision. He also relied upon the Judgment rendered by Hon’ble Supreme Court in SLP (Crl.) No.11906 of 2022 dated 24.11.2023 (Ashok Kumar Vs. State of Uttarakhand and Another), whereby, the Hon’ble Supreme Court has observed as under: “….During the course of submissions learned counsel for the appellant drew our attention to a recent judgment of this Court in the case of Jamboo Bhandari Vs. M.P. State Industrial Development Corp. Ltd. reported in (2023) SCC OnLine SC 1144 dated 04.09.2023 and particularly to Paragraph 6 of the said judgment, which reads as under: “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. In the circumstances, we find that justice would be subserved by permitting the appellant to advance his arguments on the application seeking waiver of pre-deposit which was dismissed by the Appellate Court and sustained by the High Court in Light of the aforesaid judgment. Consequently, the impugned order passed by the High Court sustaining the order of the Sessions Court is/are set aside. The Sessions Court to re- consider the application filed by appellant herein seeking waiver of the pre-deposit. It is needless to observe that the Sessions Court shall consider observations of this Court in the aforesaid judgment and in accordance with law. the said application in accordance with The appeal is allowed and disposed of in the aforesaid terms. Pending application(s), if any, shall stand disposed of.”

6. It is also contended by learned counsel for the applicant that applicant was seeking bail under Section 389 Cr.P.C. and not under the N.I. Act.

7. This argument advanced on behalf of learned counsel for the applicant is totally fallacious for the reason that N.I. Act is a Special Act and in 3 view of the Special Act, the provisions of Cr.P.C. will be subject to Section 148 N.I. Act.

8. Having gone through the provisions of Section 148 of the N.I. Act and after taking into consideration the observations recorded by the Hon’ble Supreme Court in the judgment rendered on

24.11.2023, this Court is of the considered view that in normal circumstances, the Appellate Court may be justified in imposing the condition of deposit, as provided in Section 148 of the N.I. Act, and only in those cases, where imposing the condition of deposit is unjust or which may deprive the accused/appellant to pursue his appeal, an exception can be drawn by deviating from the normal procedure. In such view of the matter, this Court is of the firm opinion that the Case Law relied upon by learned counsel for the applicant in the case of Ashok Kumar (Supra) is not applicable in the facts and circumstances of the present case.

9. In view of the foregoing reasons, this Court is not inclined to interfere in the matter. Accordingly, C528 application is dismissed in limine, as the Court finds that no special circumstance exists in the present case, and the condition of deposit of 20% compensation will neither be unjust nor it will amount to deprivation of the right of appeal to the applicant.

10. Moreover, the learned appellate court has got right only to extend the time for 30 days after expiry of period of 60 days granted by it to deposit the 20% of the minimum amount of compensation at the 4 time of admission of the appeal. In this view of the matter too, learned 2nd Additional Sessions Judge was justified in passing the order dated 13.08.2024 impugned in the present C528 application saying that the application 16 ([k) was not maintainable and the same was rejected.

11. Pending application, if any, stands disposed of accordingly. AK (Pankaj Purohit, J.) 09.01.2025 5