TMI Blog2019 (9) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... Country. Impugned order reveals that even on 01.07.2019, petitioner(s) moved applications for seeking exemption from personal appearance as well as to grant adjournment on the pretext that they were going to file some miscellaneous application(s) before the Hon'ble Supreme Court with a hope to get some more time for making the deposit of the amount in question, but no such order has been produced by them. Learned Appellate Court, while showing magnanimity and taking an undue lenient view, accepted the request of the petitioner(s) and granted them more time uptill 20.07.2019 to comply with the order for deposit of amount. Again on the next date of hearing i.e. 20.07.2019, two more applications of similar nature were filed on behalf of the petitioner(s) for seeking exemption from personal appearance as well as for adjournment of the appeal(s), but learned Appellate Court found no option except to reject the same and rightly so, while observing that their absence is intentional and they were avoiding the Court proceedings deliberately. The offence under Section 138 of the Act is bailable, but petitioner(s) stand already convicted and their sentence have been suspended unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2018 and upheld upto Hon'ble Supreme Court, titled as 'Surinder Singh Deswal @ Col. S.S. Deswal and others Versus Virender Gandhi', JT 2019 (6) SC 240 (hereinafter referred as 'Deswal's case'). 3) For convenience, the facts are noticed from CRM-M No.37243 of 2019, which, in brief, are as under:- Petitioner No.3 i.e. M/s Bhoomi Infrastructure Company is a Firm, registered under the Indian Partnership Act, 1932, whereas petitioner Nos.1 2, being partners, are responsible for conducting its day-to-day business. Initially, respondent No.2/complainant was a partner in the above Firm having 7% share, but later on, it was re-constituted on 27.06.2011 and his share was enhanced to 16%. It transpires from the paper-book that some changes were made by way of Memorandum of Understanding (MoU) between the partners in terms of Flat Buyers Agreements and Mortgage Deeds dated 30.11.2013 01.12.2013, respectively. In view of the above MoU, to compensate the respondent/complainant and in order to discharge their legal liability, petitioner(s) issued 64 cheques for an amount of ₹ 37.61 Crores (₹ 20.30 Crores for retirement dues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt on 29.05.2019 (Deswal's case'). 7) Despite the above factual position, petitioner(s) did not deposit the amount in question; rather avoided the proceedings before learned Appellate Court and that led to the passing of impugned order dated 20.07.2019. Hence, the present petitions. 8) It is contended by learned Senior Counsel for the petitioner(s) that the Appellate Court has adopted a totally wrong approach while cancelling the bail granted to the petitioner(s) merely on non-deposit of 25% amount of compensation and defeated their right of appeal against the judgment of conviction and order of sentence, passed by learned trial Court. Further contended that no such pre-condition for deposit of 25% amount of compensation under Section 148 of the Amendment Act can be imposed while suspending the sentence and at best, the same can be recovered as a fine in terms of the procedure prescribed under Section 421 Cr.P.C. In support of his contention, learned Senior Counsel has relied upon the judgment dated 18.07.2019, passed by the co-ordinate Bench of this Court, titled as 'Vivek Sahni and another Versus Kotak Mahindra Bank Ltd.' (CRM-M Nos.29187 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 138 of the N.I. Act to deposit 25% of the amount of compensation/fine imposed by the learned trial Court, pending appeals challenging the order of conviction and sentence and while suspending the sentence under Section 389 of the Cr.P.C., considering Section 148 of the N.I. Act as amended? 8. It is the case on behalf of the appellants that as the criminal complaints against the appellants under Section 138 of the N.I. Act were lodged/filed before the amendment Act No. 20/2018 by which Section 148 of the N.I. Act came to be amended and therefore amended Section 148 of the N.I. Act shall not be made applicable. However, it is required to be noted that at the time when the appeals against the conviction of the appellants for the offence under Section 138 of the N.I. Act were preferred, Amendment Act No. 20/2018 amending Section 148 of the N.I. Act came into force w.e.f. 1.9.2018. Even, at the time when the appellants submitted application/s under Section 389 of the Cr.P.C. to suspend the sentence pending appeals challenging the conviction and sentence, amended Section 148 of the N.I. Act came into force and was brought on statute w.e.f. 1.9.2018. Therefore, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 138 of the N.I. Act were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018. If such a purposive interpretation is not adopted, in that case, the object and purpose of amendment in Section 148 of the N.I. Act would be frustrated. Therefore, as such, no error has been committed by the learned first appellate court directing the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court considering Section 148 of the N.I. Act, as amended. 9. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the N.I. Act as amended, the appellate Court may order the appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court and the word used is not shall and therefore the discretion is vested with the first appellate court to direct the appellant accused to deposit such sum and the appellate court has construed it as mandatory, which according to the learned Senior Advocate for the appellants would be contrary to the provisions of Section 148 of the N.I. Act as amended is concerned, considering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, relying upon Section 357(2) of the Cr.P.C. 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 and in support of the above reliance placed upon the decision of this Court in the case of Dilip S. Dhanukar (supra) is concerned, the aforesaid has no substance. 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 by the trial Court. In view of the above and for the reasons stated herein above, impugned Judgment and Order passed by the High Court does not call for any interference. 11) Also noteworthy to be recorded that when Hon'ble Supreme Court was not inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has been produced by them. Learned Appellate Court, while showing magnanimity and taking an undue lenient view, accepted the request of the petitioner(s) and granted them more time uptill 20.07.2019 to comply with the order for deposit of amount. Again on the next date of hearing i.e. 20.07.2019, two more applications of similar nature were filed on behalf of the petitioner(s) for seeking exemption from personal appearance as well as for adjournment of the appeal(s), but learned Appellate Court found no option except to reject the same and rightly so, while observing that their absence is intentional and they were avoiding the Court proceedings deliberately. 12) No doubt, the offence under Section 138 of the Act is bailable, but petitioner(s) stand already convicted and their sentence have been suspended under Section 389(1) of the Cr.P.C., which inter alia envisages that pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded in writing, order that the execution of the sentence or order appealed against be suspended and, also, that if he is in confinement, be released on bail. As noticed in para 10 of this order, the sentence of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till further, as on date, suspension of sentence as well as bail bonds of the petitioner(s) stand cancelled by way of the judicial order of learned Appellate Court, thus, they were under obligation to surrender before learned trial Court forthwith and in any case, they cannot fall back on the plea that offence under Section 138 of the Act is bailable. 13) Concededly, till date, neither the petitioner(s) have made any deposit; nor coming forward to participate with the proceedings before learned Appellate Court; nor have surrendered before learned trial Court in terms of the impugned order, therefore, in the opinion of this Court, they have no respect for the judicial orders, passed in the matter from time to time including by Hon'ble Supreme Court. While taking into consideration the track record of the petitioner(s), it can be safely said that present bunch of petitions is nothing, but hair-splitting the construction of Section 148 of the Amendment Act, which has already been duly answered by the Hon'ble Supreme Court with the result that Appellate Court is well empowered to impose the condition for deposit of 25% amount of compensation at the time of suspension ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to deposit 20% (₹ 60 Lakh) of the amount of compensation, awarded by learned trial Court, under Section 148 of the Amendment Act. Thereafter, in the proceedings under SARFAESI Act, two mortgaged properties were sold through different auctions i.e. one by sale of showroom for an amount of ₹ 1.21 Crores on 16.04.2019 and another for ₹ 52 Lakh earlier thereto (total ₹ 1.73 Crores). During pendency of both the appeals, petitioners filed separate applications for adjustment of the amount recovered from them during the proceedings under SARFAESI Act, but both the applications were rejected by learned Appellate Court and that lead to the filing of two quashing petitions under Section 482 Cr.P.C. and in this regard, two questions were framed and question No.1 reads as under :- Whether a convict under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the NI Act')while in appeal against the conviction is entitled to pray for adjustment of the amount already recovered under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to as 'th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght that no important point of law should be decided without a proper lis between parties properly ranged on either side and a crossing of the swords. We think it is inexpedient for the Supreme Court to delve into problems which do not arise and express opinion thereon. Still further, in 'R.S. Nayak Versus A.R. Antulay', 1984 (2) SCC 183, para 69, the Hon'ble Supreme Court observed that:- In view of the conclusions reached by us, we consider it unnecessary to ascertain which would be the authority competent to sanction prosecution of M.L.A. as envisaged by Section 6, though it must be frankly confessed that considerable time was spent in the deliberations in search of competent sanctioning authority. The vital question has become one of academic interest. We propose to adhere to the accumulated wisdom which has ripened into a settled practice of this Court not to decide academic questions. The question is left open. Although in Sahni's case, the reasoning have been assigned while deciding question No.2 that there is no provision in Section 148 of the NI Act for recovery of defaulted amount against the appellant and that normally ..... X X X X Extracts X X X X X X X X Extracts X X X X
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