TMI Blog2019 (5) TMI 1626X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Court, in an appeal challenging the order of conviction under Section 138 of the N.I. Act, is conferred with the power to direct the convicted accused appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. By the amendment in Section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused appellant has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in Section 148 of the N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 1.9.2018 shall not be applicable has no substance and cannot be accepted, as by amendment in Section 148 of the N.I. Act, no substantive right of appeal has been taken away and/or affected. Section 148 of the N.I. Act as amended, shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under Section 138 of the N.I. Act, even in a case where the criminal complaints for the offence under Section 138 of the N.I. Act were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd resources in the court proceedings to realise the value of the cheque and having observed that such delay has compromised the sanctity of the cheque transactions, the Parliament has thought it fit to amend Section 148 of the N.I. Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the N.I. Act and also Sec 138 of the N.I. Act. Section 357(2) of the Cr.P.C. - case of appellant is that once the appeal against the order of conviction is preferred, fine is not recoverable pending appeal and therefore such an order of deposit of 25% of the fine ought not to have been passed - HELD THAT:- The opening word of amended Section 148 of the N.I. Act is that notwithstanding anything contained in the Code of Criminal Procedure.. - Therefore irrespective of the provisions of Section 357(2) of the Cr.P.C., pending appeal before the first appellate court, challenging the order of conviction and sentence under Section 138 of the N.I. Act, the appellate court is conferred with the power to direct the appellant to deposit such sum pending appeal which shall be a minimum of 20% of the fine or compensation awarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved and dissatisfied with the order of conviction passed by the learned trial Court, convicting the appellants original accused for the offence under Section 138 of the N.I. Act and the sentence imposed by the learned trial Court, the appellants original accused have preferred criminal appeals before the first appellate Court learned Additional Sessions Judge, Panchkula. In the said appeals, the appellants original accused submitted application/s under Section 389 of the Cr. P.C. for suspension of sentence and releasing them on bail, pending appeal/s. 4.2 That considering the provisions of amended Section 148 of the N.I. Act, which has been amended by Amendment Act No. 20/2018, which came into force w.e.f. 1.9.2018, the first appellate Court, while suspending the sentence and allowing the application/s under Section 389 of the Cr.P.C, directed the appellants to deposit 25% of the amount of compensation/fine awarded by the learned trial Court. 4.3 Feeling aggrieved by the order passed by the learned first appellate Court learned Additional Sessions Judge, Panchkula directing the appellants original accused original appellants to depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the N.I. Act, prior to the amendment Act came into force, Section 148 of the N.I.Act, as amended shall not be applicable. 5.3 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants that the legal proceedings, whether civil or criminal, are to be decided on the basis of the law applicable on the date of the filing of the suit or alleged commission of offence by the trial Court or the appellate Court, unless the law is amended expressly with retrospective effect, subject to the provisions of Article 20(1) of the Constitution of India. In support of his above submission, learned Senior Counsel appearing on behalf of the appellants has heavily relied upon the decisions of this Court in the case of Garikapatti Veeraya v. N. Subbiah Choudhury, reported in AIR 1957 SC 540; and Videocon International Limited v. Securities and Exchange Board of India, reported in (2015) 4 SCC 33. 5.4 It is further submitted by the learned Senior Advocate appearing on behalf of the appellants that even otherwise in the present case, the first appellate Court has interpreted the word may as shall in Section 148 of the N.I. Act and proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is submitted that as per Section 357(2) of the Cr.P.C., no such fine is payable till the decision of the appeal. It is submitted that therefore also the first appellate Court ought not to have passed any order directing the appellants to deposit 25% of the amount of fine/compensation, pending appeal/s. In support of his above submission, learned Senior Counsel has heavily relied upon the decision of this Court in the case of Dilip S. Dhanukar v. Kotak Mahindra Bank, reported in (2007) 6 SCC 528. 5.8 Making the above submissions and relying upon the aforesaid decisions, it is prayed to allow the present appeals and quash and set aside the impugned order passed by the first appellate court, confirmed by the High Court, by which the appellants are directed to deposit 25% of the amount of compensation considering Section 148 of the N.I. Act as amended. 6. While opposing the present appeals, Shri Alok Sangwan, learned Advocate appearing on behalf of the original complainant has vehemently submitted that the order passed by the first appellate Court directing the appellants to deposit 25% of the amount of compensation/fine pending appeal and while sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and not substantive and does not affect the vested rights of the appellants, as such, the same can have a retrospective effect and can be applied in the present case also. 6.2 Now so far as the reliance placed on Section 357(2) of the Cr.P.C. and the submission of the learned Senior Advocate appearing on behalf of the appellants that in view of Section 357(2) of the Cr.P.C., fine during the pendency of the appeal is not recoverable is concerned, it is vehemently submitted that in the present case in Section 148 of the N.I. Act as amended, it is specifically stated that Notwithstanding anything contained in the Code of Criminal Procedure, 1973 .. . It is submitted that therefore Section 148 of the N.I. Act as amended shall be applicable and it is always open for the appellate court to direct deposit of such sum, but not less than 20% of the amount of compensation/fine imposed by the learned trial court. 6.3 Making the above submissions, it is prayed to dismiss the present appeals. 7. We have heard the learned counsel for the respective parties at length. 7.1 The short question which is posed for consideration before this Court is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court trying an offence under section 138, may order the drawer of the cheque to pay interim compensation to the complainant, in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and in any other case, upon framing of charge. The interim compensation so payable shall be such sum not exceeding twenty per cent of the amount of the cheque; and (ii) to insert a new section 148 in the said Act so as to provide that 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. 4. The Bill seeks to achieve the above objectives. 148. Power to 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 compensat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Reasons of amendment in Section 148 of the N.I. Act. 8.1 Having observed and found that because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of the enactment of Section 138 of the N.I. Act was being frustrated, the Parliament has thought it fit to amend Section 148 of the N.I. Act, by which the first appellate Court, in an appeal challenging the order of conviction under Section 138 of the N.I. Act, is conferred with the power to direct the convicted accused appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. By the amendment in Section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused appellant has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in Section 148 of the N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 1.9.2018 shall not be applicable has no substance and cannot be accepted, as by amendment in Section 148 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are to be assigned. Therefore amended Section 148 of the N.I. Act confers power upon the Appellate Court to pass an order pending appeal to direct the Appellant Accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application filed by the AppellantAccused under Section 389 of the Cr.P.C. to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the N.I. Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the appellant. Therefore, if amended Section 148 of the N.I. Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the N.I. Act, but also Section 138 of the N.I. Act. Negotiable Instruments Act has been amended from time to time so as to provide, inter alia, speedy d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed have to deposit the amount of compensation/fine as directed by the appellate court within a period of 60 days which can be further extended by a further period of 30 days as may be directed by the Court on sufficient cause being shown by the appellants. However, in the facts and circumstances of the case and considering the fact that the appellants were bonafidely litigating before this Court challenging the order passed by the first appellate court, in exercise of powers under Article 142 of the Constitution of India and in the peculiar facts and circumstances of the case and the amount to be deposited is a huge amount, we grant further four weeks time from today to the appellants to deposit the amount as directed by the first appellate court, confirmed by the High Court and further confirmed by this Court. 12. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned common judgment and order passed by the High Court dismissing the revision application/s, confirming the order passed by the first appellate court directing the appellants to deposit 25% of the amount of fine/compensation pending appeals. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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