Pradeep Enterprises v. State of U.P. and Ors) U/s

1. Heard Sri Hemandra Pratap Singh, learned counsel for the applicant as well as Sri Moti Lal, learned AGA for the State and Sri A.K. Malviya, learned counsel appearing for opposite party no.2.

2. A joint statement has been made by learned counsel for the parties that they do not propose to file any additional affidavit and the application be decided on the basis of documents available on record.

3. With the consent of the parties, the present application is decided at this stage.

4. This is an application filed U/s 528 BNSS for modification in the order dated 16.04.2025 passed in Criminal Appeal No. 45 of 2025 (Pradeep Enterprises vs. State of U.P. and Ors) U/s 138 of N.I. Act, P.S. Kotwali, District Ghazipur.

5. The case of the applicant is that a complaint stood lodged by the opposite party no.2 against the applicant on 14.06.2022 U/s 138 of N.I. Act with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque of Rs.70 lacs bearing no. 000004 dated 05.03.2021 which on presentation in the bank came to be dishonoured followed by a statutory demand notice dated 19.05.2022 and the complaint U/s 138 of N.I. Act on 14.06.2022. Thereafter by virtue of the order dated 17.03.2025, the Additional Civil Judge (J.D.)/J.M., court no.8 Gazipur in complaint case no. 129 of 2012 U/s 138 of the N.I. Act proceeded to pass a order for conviction of the applicant and payment of fine to the tune of Rs. 90 lacs. Assailing the said order, an appeal purported U/s 430 of BNSS came to be preferred by the applicant before the court of District and Sessions Judge, Gazipur bearing no. 45 of 2025 along with an application for staying of the sentence as well as recovery. On 16.04.2025, the court of Sessions Judge, Ghazipur in appeal no. 45 of 2025 proceeded to pass an order directing the applicant to deposit 10 per cent of the compensation under Section 148 of N.I. Act as determined by the trial court. Questioning the part of the order in so far as it pertains to directing to deposit of 10 per cent of the compensation U/s 148 of N.I. Act as determined by the trial court, the present application has been filed.

6. Learned counsel for the applicant submitted that though U/s 148 of N.I.Act, the appellate court has possess the power of an appeal preferred against the conviction to order the appellant herein to deposit a sum which may be minimum of 20 per cent of the fine of compensation awarded by the trial court but he submits that the determination as to whether the case of the applicant false under the exceptional category or not, has not been considered. According to him the law in this regard stands well crystalised in the judgment of the Hon'ble Apex Court in the case of Jamboo Bhandari vs. M.P. State Industrial Development Corporation LTD and ors, 2023 Live Law (SC) 776 and in the case of Muskan Enterprises and Another vs. State of Punjab and another, passed in Criminal Appeal No. 5491 of 2024 decided on 19, December, 2024. Learned counsel for the applicant submits that the order dated 16.04.2025 passed by the court below in so far as it directs for payment of 10 per cent of the compensation as per Section 148 of N.I. Act be set aside and the matter be remitted to the court below to pass a fresh order.

7. Learned AGA as well as learned counsel appearing for opposite party no.2 submits that though the court has direction for compensation to the tune of 10 per cent and the minimum compensation as provided U/s 148 of N.I. Act is 20 per cent but then the order has not been passed in the light of the judgment in the case of Jamboo Bhandari (Supra) and the case of Muskan Enterprises (Supra), according to the order in so far as directs 10 per cent of compensation U/s 148 of N.I. Act be set aside and the matter be remitted back to the court below to pass a fresh order.

8. Learned counsel for the applicant has no objection to the same and he gracefully accepts the same.

9. Considering the submissions so made across the bar and the stand taken by the respective parties and the fact also that the mandate in the case of Jamboo Bhandari (Supra) and in the case of Muskan Enterprises (Supra) has not been considered in correct perspective and thus application is being decided in the following terms: a. The order dated 16.04.2025 passed by Sessions Judge, Ghazipur in Criminal Appeal No. 45 of 2025 (Pradeep Enterprises vs. State of U.P.) in so far as it pertains to directing the applicants to deposit 10 per cent of the compensation U/s 148 of N.I. Act as determined by the trial court is set aside. b. The matter stands remitted back to the court below to decide the matter afresh strictly in accordance with the judgment in the case of Jamboo Bhandari (Supra) and the case of Muskan Enterprises (Supra). c. Since a statement has been made by the learned counsel for the applicant as per instructions that he shall not take any unnecessary adjournment, thus the court is directed to decide the same with most expedition without granting unnecessary adjournment and in case any adjournment is granted then the same should not be five days at a stretch.

10. With the aforesaid observation, the present application is disposed of. Order Date :- 11.7.2025 C. MANI (Vikas Budhwar,J.) CHANDRAMANI VERMA CHANDRAMANI VERMA CHANDRAMANI VERMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Heard Sri Hemandra Pratap Singh, learned counsel for the applicant as well as Sri Moti Lal, learned AGA for the State and Sri A.K. Malviya, learned counsel appearing for opposite party no.2.

2. A joint statement has been made by learned counsel for the parties that they do not propose to file any additional affidavit and the application be decided on the basis of documents available on record.

3. With the consent of the parties, the present application is decided at this stage.

4. This is an application filed U/s 528 BNSS for modification in the order dated 16.04.2025 passed in Criminal Appeal No. 45 of 2025 (Pradeep Enterprises vs. State of U.P. and Ors) U/s 138 of N.I. Act, P.S. Kotwali, District Ghazipur.

5. The case of the applicant is that a complaint stood lodged by the opposite party no.2 against the applicant on 14.06.2022 U/s 138 of N.I. Act with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque of Rs.70 lacs bearing no. 000004 dated 05.03.2021 which on presentation in the bank came to be dishonoured followed by a statutory demand notice dated 19.05.2022 and the complaint U/s 138 of N.I. Act on 14.06.2022. Thereafter by virtue of the order dated 17.03.2025, the Additional Civil Judge (J.D.)/J.M., court no.8 Gazipur in complaint case no. 129 of 2012 U/s 138 of the N.I. Act proceeded to pass a order for conviction of the applicant and payment of fine to the tune of Rs. 90 lacs. Assailing the said order, an appeal purported U/s 430 of BNSS came to be preferred by the applicant before the court of District and Sessions Judge, Gazipur bearing no. 45 of 2025 along with an application for staying of the sentence as well as recovery. On 16.04.2025, the court of Sessions Judge, Ghazipur in appeal no. 45 of 2025 proceeded to pass an order directing the applicant to deposit 10 per cent of the compensation under Section 148 of N.I. Act as determined by the trial court. Questioning the part of the order in so far as it pertains to directing to deposit of 10 per cent of the compensation U/s 148 of N.I. Act as determined by the trial court, the present application has been filed.

6. Learned counsel for the applicant submitted that though U/s 148 of N.I.Act, the appellate court has possess the power of an appeal preferred against the conviction to order the appellant herein to deposit a sum which may be minimum of 20 per cent of the fine of compensation awarded by the trial court but he submits that the determination as to whether the case of the applicant false under the exceptional category or not, has not been considered. According to him the law in this regard stands well crystalised in the judgment of the Hon'ble Apex Court in the case of Jamboo Bhandari vs. M.P. State Industrial Development Corporation LTD and ors, 2023 Live Law (SC) 776 and in the case of Muskan Enterprises and Another vs. State of Punjab and another, passed in Criminal Appeal No. 5491 of 2024 decided on 19, December, 2024. Learned counsel for the applicant submits that the order dated 16.04.2025 passed by the court below in so far as it directs for payment of 10 per cent of the compensation as per Section 148 of N.I. Act be set aside and the matter be remitted to the court below to pass a fresh order.

7. Learned AGA as well as learned counsel appearing for opposite party no.2 submits that though the court has direction for compensation to the tune of 10 per cent and the minimum compensation as provided U/s 148 of N.I. Act is 20 per cent but then the order has not been passed in the light of the judgment in the case of Jamboo Bhandari (Supra) and the case of Muskan Enterprises (Supra), according to the order in so far as directs 10 per cent of compensation U/s 148 of N.I. Act be set aside and the matter be remitted back to the court below to pass a fresh order.

8. Learned counsel for the applicant has no objection to the same and he gracefully accepts the same.

9. Considering the submissions so made across the bar and the stand taken by the respective parties and the fact also that the mandate in the case of Jamboo Bhandari (Supra) and in the case of Muskan Enterprises (Supra) has not been considered in correct perspective and thus application is being decided in the following terms: a. The order dated 16.04.2025 passed by Sessions Judge, Ghazipur in Criminal Appeal No. 45 of 2025 (Pradeep Enterprises vs. State of U.P.) in so far as it pertains to directing the applicants to deposit 10 per cent of the compensation U/s 148 of N.I. Act as determined by the trial court is set aside. b. The matter stands remitted back to the court below to decide the matter afresh strictly in accordance with the judgment in the case of Jamboo Bhandari (Supra) and the case of Muskan Enterprises (Supra). c. Since a statement has been made by the learned counsel for the applicant as per instructions that he shall not take any unnecessary adjournment, thus the court is directed to decide the same with most expedition without granting unnecessary adjournment and in case any adjournment is granted then the same should not be five days at a stretch.

10. With the aforesaid observation, the present application is disposed of. Order Date :- 11.7.2025 C. MANI (Vikas Budhwar,J.) CHANDRAMANI VERMA CHANDRAMANI VERMA CHANDRAMANI VERMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad High Court of Judicature at Allahabad