2023 (5) TMI 425 - HC - Indian Laws

Dishonour of Cheque - deposit a minimum of 20% of fine/compensation - seeking waiving off the payment of 20% of amount of fine imposed upon the petitioners as per section 148 NI Act - setting aside the order whereby suspension of sentence was ordered to be vacated due to non-payment of said amount - HELD THAT:- The aim, object and purport of Section 148 was explained by the Hon’ble Apex Court in SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND OTHERS VERSUS VIRENDER GANDHI [2019 (5) TMI 1626 - SUPREME COURT] wherein it was categorically held that the use of words “may” in Section 148 must be construed as “shall” in order to give force to the actual intent behind insertion of such provision under the NI Act, 1881 - A perusal of the aforesaid decision of Hon’ble Apex Court also reveals that though the Appellate Court is required to ordinarily direct an accused/appellant to deposit a minimum of 20% of fine/compensation imposed upon him, either on its own while ordering suspension of sentence under Section 389 Cr.P.C. or upon an application moved by the complainant under Section 148 NI Act, the Appellate Court, however, may choose to not impose such a condition upon an accused/appellant for “special reasons” to be assigned or recorded.

The only ground on which waiver under Section 148 of NI Act is sought is that the petitioners have a good case of acquittal in the appeal in view of the above-stated facts. This ground alone, in the opinion of this Court, is not sufficient to exempt the petitioners from depositing 20% of the fine amount imposed by the learned Trial Court, as per Section 148 of NI Act. The fact remains that the parties were heard and their evidence was recorded and appreciated by the same Court in both the Complaint cases arising out of same set of facts, and the judgments were also passed on the same day. The merits of the appeal filed by the petitioners and their contentions cannot be considered while exercising powers under Section 148 of NI Act - every accused convicted under Section 138, who files an appeal against conviction, believes to have a good case for acquittal. This, by no stretch of imagination, can be held to fall within the purview of “special reasons” to allow a convict under Section 138 to not deposit a portion of the fine imposed upon him during the pendency of appeal.

Suspension of sentence of the petitioners was vacated upon their failure to deposit the 20% of fine amount and they were asked to surrender within 7 days - HELD THAT:- The legal position with respect to imposition of condition to deposit a percentage of fine/compensation amount while granting suspension of sentence in a case under Section 138 of NI Act, was explained by the Hon’ble Apex Court in case of SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND OTHERS VERSUS VIRENDER GANDHI [2019 (5) TMI 1626 - SUPREME COURT] where it was held that It is for the Appellate Court who has granted suspension of sentence to take call on non-compliance and take appropriate decision. What order is to be passed by the Appellate Court in such circumstances is for the Appellate Court to consider and decide. However, non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated.

Merely because the condition to deposit 20% of the fine amount was not imposed upon the petitioners at the time of suspension of sentence by the learned Appellate Court, it cannot be held that the vacation of order of suspension of sentence upon non-fulfilment of such a condition imposed subsequently by the learned Appellate Court was bad in law.

Considering the mandate of Section 148 NI Act as explained by Apex Court in Surinder Singh Deswal-I and the powers of Appellate Court in revoking the suspension of sentence apropos Section 148 NI Act as explained by the Apex Court in Surinder Singh Deswal-II, this Court finds no infirmity in the impugned order dated 06.01.2023 whereby the petitioners have been directed to surrender, upon non-fulfilment of condition under Section 148 NI Act - the petitioners are directed to deposit 20% of the amount of fine imposed by the learned Trial Court, within 10 days from today, in default of which the petitioners shall surrender before the Trial Court concerned within one week of last day on non-payment of aforesaid amount.

Petition is disposed off.