Pritinkar Jain v. Krishna Pratap Singh) under Section

the amount as determined by the trial court as a compensation to the opposite party No.2.

6. Questioning the said order, the applicant has filed the leading application. In the leading application, on 17.04.2025, the following orders were passed: "1. The contention of the learned counsel for the applicant is that post conviction of the applicant, the applicant had preferred an appeal and along with it, an application was also preferred for staying of the recovery of the amount, citing reasons that the applicant is ill and not in a position to make the said payment of 20% of the compensation, however, lower appellate court has not considered the genuine request of the applicant overlooking the mandate contained in the case of Jamboo Bhandari v. M.P. State Industrial development; 2023 (10) SCC 466.

2. Matter requires consideration.

3. Issue notice to opposite party no. 2.

4. Put up this case as fresh on 15.05.2025 at 2.00 pm along with Application U/S 528 BNSS No. 11873 of 2025.

5. Till the next date of listing, the order dated 04.02.2025 passed by the In- charge Sessions Judge, Lalitpur in Criminal Appeal No. 07 of 2025 (Krishna Pratap Singh Vs. State of U.P. and another) under Section 138 of N.I. Act, Police Station Kotwali, District Lalitpur against complaint case no. 6723 of 2022 to the extent directing the applicant to deposit 20% of the total amount within 60 days from the date of the said order insofar as it relates to the applicant shall remain stayed."

7. As regards, the connected application is concerned, a cheque was drawn by the applicant for an amount of Rs.5,00,000/- bearing cheque No. 000508 dated 31.05.2022 which on presentation in the bank was dishonored on 02.06.2022 followed by a statutory demand notice stated 09.06.2022 and the complaint dated

16.07.2022. The said proceedings being Case No. 6724 of 2022 (Prashant Jain v. Krishna Pratap Singh) resulted in conviction of the applicant by virtue of the order dated 07.01.2025 of the Chief Judicial Magistrate, Lalitpur whereby the fine to the tune of Rs. 10,00,000/- along with the imprisonment for two years was passed.

8. Challenging the said order, the applicant preferred an appeal which was numbered as Criminal Appeal No. 6 of 2025 accompanied with an application for staying of the conviction and recovery of the amount and the said application came to be decided by the Court of Sessions Judge on 04.02.2025, whereby though the applicant has been enlarged on bail but in exercise of the powers under Section 148 of the N.I. Act, the applicant has been directed to be deposit 20% of the fine as compensation. The order dated 04.02.2025 passed by the appellate court is subject matter of challenge in the connected application.

9. On 17.04.2025, this Court while entertaining the application proceeded to pass the following orders: "1. The contention of the learned counsel for the applicant is that post conviction of the applicant, the applicant had preferred an appeal and along with it, an application was also preferred for staying of the recovery of the amount, citing reasons that the applicant is ill and not in a position to make the said payment of 20% of the compensation, however, lower appellate court has not considered the genuine request of the applicant overlooking the mandate contained in the case of Jamboo Bhandari v. M.P. State Industrial development; 2023 (10) SCC 466.

2. Matter requires consideration.

3. Issue notice to opposite party no. 2.

4. Put up this case as fresh on 15.05.2025 at 2.00 pm along with Application U/S 528 BNSS No. 12173 of 2025.

5. Till the next date of listing, the order dated 04.02.2025 passed by the In- charge Sessions Judge, Lalitpur in Criminal Appeal No. 06 of 2025 (Krishna Pratap Singh Vs. State of U.P. and another) under Section 138 of N.I. Act, Police Station Kotwali, District Lalitpur to the extent directing the applicant to deposit 20% of the total amount within 60 days from the date of the said order insofar as it relates to the applicant shall remain stayed."

10. Learned counsel for the applicant has submitted that though the applicant has been convicted by virtue of the orders of the trial court in leading and the connected applications but once an appeal came to be accompanied with the stay application along with an application for staying the conviction and the recovery of the subject amount then the court below was not justified in granting 20% of the compensation in favour of the opposite party no. 2 as a matter of routine, particularly, when the minimum of the 20% is to be accorded but it is not an absolute rule, however, exceptional circumstances have to be taken into consideration to determine as to whether the case falls under exceptional circumstances or not. Learned counsel for the applicant seeks to rely upon the decision of the Hon'ble Apex Court in the case of Jamboo Bhandari vs. M.P. State Industrial Development Corporation Ltd. and others; (2023) 10 SCC 446 as well as in Muskan Enterprises and another vs. The State of Punjab and another; Criminal Appeal No. 5491 of 2024. He thus submits that the order passed by the appellate court on 04.02.2025 insofar as it imposes and directs the applicant to deposit 20% of the amount be set aside and the matter be remitted back to Court below to pass fresh orders.

11. Shri Kabeer Tiwari, counsel for opposite party no. 2 submits that there has been no pleadings set-forth by the applicant either in the stay application or the appeal with regard to any financial distress or showing any circumstantial exceptions whereby 20% amount to be dispensed with, thus, the court below was justified in directing the payment of 20% of the amount. He, however, could not dispute the fact that the matter stands covered under the decision of the Hon'ble Apex Court in the case of Jamboo Bhandari (supra) and Muskan Enterprises and another (supra). He submits that in case, the Court is proposing to set aside the order of 20 % payment to be directed to deposit then the matter be remitted back to Court below to decide the said proceedings in a time bound manner.

12. I have heard learned counsel for the parties and gone through the records carefully.

13. Apparently, against the order of conviction lies there is an appeal provided before the sessions. Section 148 of the N.I. Act confers power on the appellate court to order payment pending appeal against the conviction to the complainant or the holder of the instrument. Subsection (1) of Section 148-A of the N.I. Act itself provides that appellate court may order to appellant to deposit 20% of the amount which may be 20% minimum of the fine or compensation awarded in the trial court. The question as to whether, it is an absolute rule to deposit 20% as per the Section 148 of the Act came up for consideration in Jamboo Bhandari (supra) wherein in para 8, 9, 10 and 11, it was observed as under "8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the courts to consider the said plea.

9. We disagree with the above submission. When an accused applies under Section 389CrPC for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the court has to consider whether the case falls in exception or not.

10. In these cases, both the Sessions Courts and the High Court have proceeded on the erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception.

11. The learned counsel appearing for the appellants, at this stage, states that the appellants have deposited 20% of the compensation amount. However, this is the matter to be examined by the High Court."

14. Here, the Court finds that there has been no consideration on the part of the Court in directing for payment of 20% of the amount as it appears that the Court was swayed away with the language employed in Sub-section (1) Section 148A of the N.I. act treating it to be an absolute. As held by the Hon'ble Apex Court, the issue as to whether the deposit of 20% is required to be paid in the light of any exceptional facts or not is a matter which ought to have be considered by the court below and it was required to be adverted to, while being reflected in the order in question.

15. Considering the submissions so made across the bar and bearing in mind the fact that the order which is subject matter of challenge insofar as it pertains to directing 20% payment of the amount, it is not as per the mandate of the Hon'ble Apex Court in the above noted decision, thus, in the fitness of the matter, the orders dated 04.02.2025 passed in leading and connected applications insofar as it directs for payment of 20% of the amount in exercise of powers under Section 148 of the N.I. Act is set aside.

16. The matter stands remitted back to pass fresh order strictly in accordance with law within a period of one month from today.

17. The learned counsel for the applicant and the counsel for the opposite party no. 2 have made a statement as per instructions that their client will not take any adjournment and in case, adjournment is being granted for any eventuality then the same should be on the genuine reasons and not more than seven days at a stretch.

18. Since the order has been passed today in the presence of the counsel for the parties, thus, it would be deemed that the applicant and opposite party no. 2 are well aware of the order.

19. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 30.05.2025 and the court below shall proceed to decide the said proceeding with most expedition.

20. Needless to point out that the Court has not adjudicated upon the merits of the case.

21. Accordingly, the applications stand disposed of. Order Date :- 15.5.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

the amount as determined by the trial court as a compensation to the opposite party No.2.

6. Questioning the said order, the applicant has filed the leading application. In the leading application, on 17.04.2025, the following orders were passed: "1. The contention of the learned counsel for the applicant is that post conviction of the applicant, the applicant had preferred an appeal and along with it, an application was also preferred for staying of the recovery of the amount, citing reasons that the applicant is ill and not in a position to make the said payment of 20% of the compensation, however, lower appellate court has not considered the genuine request of the applicant overlooking the mandate contained in the case of Jamboo Bhandari v. M.P. State Industrial development; 2023 (10) SCC 466.

2. Matter requires consideration.

3. Issue notice to opposite party no. 2.

4. Put up this case as fresh on 15.05.2025 at 2.00 pm along with Application U/S 528 BNSS No. 11873 of 2025.

5. Till the next date of listing, the order dated 04.02.2025 passed by the In- charge Sessions Judge, Lalitpur in Criminal Appeal No. 07 of 2025 (Krishna Pratap Singh Vs. State of U.P. and another) under Section 138 of N.I. Act, Police Station Kotwali, District Lalitpur against complaint case no. 6723 of 2022 to the extent directing the applicant to deposit 20% of the total amount within 60 days from the date of the said order insofar as it relates to the applicant shall remain stayed."

7. As regards, the connected application is concerned, a cheque was drawn by the applicant for an amount of Rs.5,00,000/- bearing cheque No. 000508 dated 31.05.2022 which on presentation in the bank was dishonored on 02.06.2022 followed by a statutory demand notice stated 09.06.2022 and the complaint dated

16.07.2022. The said proceedings being Case No. 6724 of 2022 (Prashant Jain v. Krishna Pratap Singh) resulted in conviction of the applicant by virtue of the order dated 07.01.2025 of the Chief Judicial Magistrate, Lalitpur whereby the fine to the tune of Rs. 10,00,000/- along with the imprisonment for two years was passed.

8. Challenging the said order, the applicant preferred an appeal which was numbered as Criminal Appeal No. 6 of 2025 accompanied with an application for staying of the conviction and recovery of the amount and the said application came to be decided by the Court of Sessions Judge on 04.02.2025, whereby though the applicant has been enlarged on bail but in exercise of the powers under Section 148 of the N.I. Act, the applicant has been directed to be deposit 20% of the fine as compensation. The order dated 04.02.2025 passed by the appellate court is subject matter of challenge in the connected application.

9. On 17.04.2025, this Court while entertaining the application proceeded to pass the following orders: "1. The contention of the learned counsel for the applicant is that post conviction of the applicant, the applicant had preferred an appeal and along with it, an application was also preferred for staying of the recovery of the amount, citing reasons that the applicant is ill and not in a position to make the said payment of 20% of the compensation, however, lower appellate court has not considered the genuine request of the applicant overlooking the mandate contained in the case of Jamboo Bhandari v. M.P. State Industrial development; 2023 (10) SCC 466.

2. Matter requires consideration.

3. Issue notice to opposite party no. 2.

4. Put up this case as fresh on 15.05.2025 at 2.00 pm along with Application U/S 528 BNSS No. 12173 of 2025.

5. Till the next date of listing, the order dated 04.02.2025 passed by the In- charge Sessions Judge, Lalitpur in Criminal Appeal No. 06 of 2025 (Krishna Pratap Singh Vs. State of U.P. and another) under Section 138 of N.I. Act, Police Station Kotwali, District Lalitpur to the extent directing the applicant to deposit 20% of the total amount within 60 days from the date of the said order insofar as it relates to the applicant shall remain stayed."

10. Learned counsel for the applicant has submitted that though the applicant has been convicted by virtue of the orders of the trial court in leading and the connected applications but once an appeal came to be accompanied with the stay application along with an application for staying the conviction and the recovery of the subject amount then the court below was not justified in granting 20% of the compensation in favour of the opposite party no. 2 as a matter of routine, particularly, when the minimum of the 20% is to be accorded but it is not an absolute rule, however, exceptional circumstances have to be taken into consideration to determine as to whether the case falls under exceptional circumstances or not. Learned counsel for the applicant seeks to rely upon the decision of the Hon'ble Apex Court in the case of Jamboo Bhandari vs. M.P. State Industrial Development Corporation Ltd. and others; (2023) 10 SCC 446 as well as in Muskan Enterprises and another vs. The State of Punjab and another; Criminal Appeal No. 5491 of 2024. He thus submits that the order passed by the appellate court on 04.02.2025 insofar as it imposes and directs the applicant to deposit 20% of the amount be set aside and the matter be remitted back to Court below to pass fresh orders.

11. Shri Kabeer Tiwari, counsel for opposite party no. 2 submits that there has been no pleadings set-forth by the applicant either in the stay application or the appeal with regard to any financial distress or showing any circumstantial exceptions whereby 20% amount to be dispensed with, thus, the court below was justified in directing the payment of 20% of the amount. He, however, could not dispute the fact that the matter stands covered under the decision of the Hon'ble Apex Court in the case of Jamboo Bhandari (supra) and Muskan Enterprises and another (supra). He submits that in case, the Court is proposing to set aside the order of 20 % payment to be directed to deposit then the matter be remitted back to Court below to decide the said proceedings in a time bound manner.

12. I have heard learned counsel for the parties and gone through the records carefully.

13. Apparently, against the order of conviction lies there is an appeal provided before the sessions. Section 148 of the N.I. Act confers power on the appellate court to order payment pending appeal against the conviction to the complainant or the holder of the instrument. Subsection (1) of Section 148-A of the N.I. Act itself provides that appellate court may order to appellant to deposit 20% of the amount which may be 20% minimum of the fine or compensation awarded in the trial court. The question as to whether, it is an absolute rule to deposit 20% as per the Section 148 of the Act came up for consideration in Jamboo Bhandari (supra) wherein in para 8, 9, 10 and 11, it was observed as under "8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the courts to consider the said plea.

9. We disagree with the above submission. When an accused applies under Section 389CrPC for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the court has to consider whether the case falls in exception or not.

10. In these cases, both the Sessions Courts and the High Court have proceeded on the erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception.

11. The learned counsel appearing for the appellants, at this stage, states that the appellants have deposited 20% of the compensation amount. However, this is the matter to be examined by the High Court."

14. Here, the Court finds that there has been no consideration on the part of the Court in directing for payment of 20% of the amount as it appears that the Court was swayed away with the language employed in Sub-section (1) Section 148A of the N.I. act treating it to be an absolute. As held by the Hon'ble Apex Court, the issue as to whether the deposit of 20% is required to be paid in the light of any exceptional facts or not is a matter which ought to have be considered by the court below and it was required to be adverted to, while being reflected in the order in question.

15. Considering the submissions so made across the bar and bearing in mind the fact that the order which is subject matter of challenge insofar as it pertains to directing 20% payment of the amount, it is not as per the mandate of the Hon'ble Apex Court in the above noted decision, thus, in the fitness of the matter, the orders dated 04.02.2025 passed in leading and connected applications insofar as it directs for payment of 20% of the amount in exercise of powers under Section 148 of the N.I. Act is set aside.

16. The matter stands remitted back to pass fresh order strictly in accordance with law within a period of one month from today.

17. The learned counsel for the applicant and the counsel for the opposite party no. 2 have made a statement as per instructions that their client will not take any adjournment and in case, adjournment is being granted for any eventuality then the same should be on the genuine reasons and not more than seven days at a stretch.

18. Since the order has been passed today in the presence of the counsel for the parties, thus, it would be deemed that the applicant and opposite party no. 2 are well aware of the order.

19. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 30.05.2025 and the court below shall proceed to decide the said proceeding with most expedition.

20. Needless to point out that the Court has not adjudicated upon the merits of the case.

21. Accordingly, the applications stand disposed of. Order Date :- 15.5.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad