Kamla Kant Nayak v. Mahesh Badal) under Section

1.Heard Sri Aanjaneya Dwivedi, learned counsel for the applicants and Sri Vikas Sharma, learned State Law Officer for the State.

2. While entertaining the present application, this Court on 17.04.2025 had issued notice to the opposite party no.1.

3. The office report dated 17.05.2025 shows that notice has been served personally upon opposite party no.2 as per the report of CJM, Jhansi.

4. Till the dictation of the order, nobody has put in appearance on behalf of opposite party no.2 and treating the service upon the opposite party no.2 be sufficient, the court is proceeded with in accordance with law.

5. This is an application filed U/s 528 BNSS for quashing the impugned order dated 06.12.2024 passed by ACJM, court no.1 Jhansi in case no. 1289 of 2020 (Kamla Kant Nayak vs. Mahesh Badal) under Section 138 of N.I. Act, P.S. Kotwali District Jhansi.

6. Learned counsel for the applicant submits that complaint stood lodged by the opposite party no.2 against the applicant U/s 138 of N.I. Act pursuant whereto the applicant came to be convicted by the court of ACJM, court no.1 Jhansi in complaint case no. 391 of 2016 (Kamal Kant Nayak vs. Mahesh Badal) on 17.07.2019 whereby the appellants were sentenced for one year of simple imprisonment with a fine of Rs. Sixty-six lacs and in default whereof two months additional simple imprisonment. Assailing the said order the applicants preferred a criminal appeal no. 52 of 2019 (Mahesh Badal vs. State of U.P. and ors) which came to be allowed on 25.08.2020 by the court of Sessions Judge, Jhansi setting aside the conviction and the sentence order dated 17.07.219 passed in complaint case no 391 of 2016. The said order came to be assailed by the opposite party no.2 while filing application U/s 378 Cr.P.C. No. 53 of 2020 which is pending. Learned counsel for the applicants has submitted that the applicant at the time of preferring of the appeal against the conviction order had filed the stay application along with an application for staying the conviction and recovery and the applicants had deposited 20 per cent of the said amount. However, now when the applicants preferred an application for refund/ return of the said, the said application has been rejected by the court of ACJM, Jhansi on 06.12.2024. The submission of learned counsel for the applicants is that the said contingency itself was taken care of and that is why proviso to sub section 3 of section 148 of N.I. came to be inserted wherein it was clearly provided that if the appellant in the said appeal is acquitted and the conviction and sentence order are set aside, then the Court shall direct the complainant to repay the said amount to the appellant and the amount so released with an interest at the ban rate as published by RBI or prevalent at the time of relevant financial year within 60 days from the date of the order or within such period for the period not exceeding 30 days as may be directed by the court on sufficient cause being shows by the complainant. Learned counsel for the applicant thus submits that the application could not have been rejected by the order impugned only on the premise that the criminal appeal against acquittal is pending. As according to the counsel for the applicants mere pendency of an appeal would not construe to be an stay as an applicants herein is armed with an order of acquittal and in case the acquittal order is reversed or set aside, then the consequences would follow which the applicants has to abide. He thus submits that the order be set aside and the matter is remitted back to the court below to pass a fresh order.

7. Learned State Law Officer on the other hand submits that the entire thing which hinges upon the rights and the claims of the applicants is the question as to whether there is any positive order in favour of the complainant in the appeal or not and he submits that section 148 of N.I. Act would play its role and it has to be considered in correct perspective by the court below. According to him the order be set aside and the matter is remitted back to the court below to pass a fresh order.

8. I have heard the submissions so made across the bar and perused the record carefully.

9. Section 148 of N.I. Act reads as under: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in 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, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rest as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of 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."

10. A close reading of the order dated 06.12.2024 rejection the application for returning of the 20 per cent amount so paid would that the said claim of the applicant has been rejected on the ground that the appeal against acquittal is pending.

11. In the opinion of the Court the law in this regard is well crystallized that mere pendency of an appeal without there being any positive order would not extinguish the acquittal order. It might be different that the appellate order is set aside. Since the aforesaid aspect of the matter is not being considered and the provisions contained under the first proviso to sub-Section 3 of Section 148 of N.I. Act has not been considered in correct perspective, thus the order dated 06.12.2024 passed by the court of ACJM, court no1 Jhansi is liable to be set aside.

12. Accordingly, the order dated 06.12.2024 passed by ACJM, court no.1 Jhansi is set aside and the matter stands remitted back to the court below to pass a fresh order bearing in mind and also recording sufficiency of the fact that the order of acquittal has not been set aside and also the provision contained U/s 148 of N.I. Act.

13. The said exercise be concluded within three months.

14. With the aforesaid observation, the present application stands disposed of. Order Date :- 28.7.2025 C. MANI (Vikas Budhwar,J.) CHANDRAMANI VERMA High Court of Judicature at Allahabad

1.Heard Sri Aanjaneya Dwivedi, learned counsel for the applicants and Sri Vikas Sharma, learned State Law Officer for the State.

2. While entertaining the present application, this Court on 17.04.2025 had issued notice to the opposite party no.1.

3. The office report dated 17.05.2025 shows that notice has been served personally upon opposite party no.2 as per the report of CJM, Jhansi.

4. Till the dictation of the order, nobody has put in appearance on behalf of opposite party no.2 and treating the service upon the opposite party no.2 be sufficient, the court is proceeded with in accordance with law.

5. This is an application filed U/s 528 BNSS for quashing the impugned order dated 06.12.2024 passed by ACJM, court no.1 Jhansi in case no. 1289 of 2020 (Kamla Kant Nayak vs. Mahesh Badal) under Section 138 of N.I. Act, P.S. Kotwali District Jhansi.

6. Learned counsel for the applicant submits that complaint stood lodged by the opposite party no.2 against the applicant U/s 138 of N.I. Act pursuant whereto the applicant came to be convicted by the court of ACJM, court no.1 Jhansi in complaint case no. 391 of 2016 (Kamal Kant Nayak vs. Mahesh Badal) on 17.07.2019 whereby the appellants were sentenced for one year of simple imprisonment with a fine of Rs. Sixty-six lacs and in default whereof two months additional simple imprisonment. Assailing the said order the applicants preferred a criminal appeal no. 52 of 2019 (Mahesh Badal vs. State of U.P. and ors) which came to be allowed on 25.08.2020 by the court of Sessions Judge, Jhansi setting aside the conviction and the sentence order dated 17.07.219 passed in complaint case no 391 of 2016. The said order came to be assailed by the opposite party no.2 while filing application U/s 378 Cr.P.C. No. 53 of 2020 which is pending. Learned counsel for the applicants has submitted that the applicant at the time of preferring of the appeal against the conviction order had filed the stay application along with an application for staying the conviction and recovery and the applicants had deposited 20 per cent of the said amount. However, now when the applicants preferred an application for refund/ return of the said, the said application has been rejected by the court of ACJM, Jhansi on 06.12.2024. The submission of learned counsel for the applicants is that the said contingency itself was taken care of and that is why proviso to sub section 3 of section 148 of N.I. came to be inserted wherein it was clearly provided that if the appellant in the said appeal is acquitted and the conviction and sentence order are set aside, then the Court shall direct the complainant to repay the said amount to the appellant and the amount so released with an interest at the ban rate as published by RBI or prevalent at the time of relevant financial year within 60 days from the date of the order or within such period for the period not exceeding 30 days as may be directed by the court on sufficient cause being shows by the complainant. Learned counsel for the applicant thus submits that the application could not have been rejected by the order impugned only on the premise that the criminal appeal against acquittal is pending. As according to the counsel for the applicants mere pendency of an appeal would not construe to be an stay as an applicants herein is armed with an order of acquittal and in case the acquittal order is reversed or set aside, then the consequences would follow which the applicants has to abide. He thus submits that the order be set aside and the matter is remitted back to the court below to pass a fresh order.

7. Learned State Law Officer on the other hand submits that the entire thing which hinges upon the rights and the claims of the applicants is the question as to whether there is any positive order in favour of the complainant in the appeal or not and he submits that section 148 of N.I. Act would play its role and it has to be considered in correct perspective by the court below. According to him the order be set aside and the matter is remitted back to the court below to pass a fresh order.

8. I have heard the submissions so made across the bar and perused the record carefully.

9. Section 148 of N.I. Act reads as under: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in 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, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rest as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of 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."

10. A close reading of the order dated 06.12.2024 rejection the application for returning of the 20 per cent amount so paid would that the said claim of the applicant has been rejected on the ground that the appeal against acquittal is pending.

11. In the opinion of the Court the law in this regard is well crystallized that mere pendency of an appeal without there being any positive order would not extinguish the acquittal order. It might be different that the appellate order is set aside. Since the aforesaid aspect of the matter is not being considered and the provisions contained under the first proviso to sub-Section 3 of Section 148 of N.I. Act has not been considered in correct perspective, thus the order dated 06.12.2024 passed by the court of ACJM, court no1 Jhansi is liable to be set aside.

12. Accordingly, the order dated 06.12.2024 passed by ACJM, court no.1 Jhansi is set aside and the matter stands remitted back to the court below to pass a fresh order bearing in mind and also recording sufficiency of the fact that the order of acquittal has not been set aside and also the provision contained U/s 148 of N.I. Act.

13. The said exercise be concluded within three months.

14. With the aforesaid observation, the present application stands disposed of. Order Date :- 28.7.2025 C. MANI (Vikas Budhwar,J.) CHANDRAMANI VERMA High Court of Judicature at Allahabad