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2019 (9) TMI 1301

..... dment) Act, 2018 - HELD THAT:- Despite the clear time limit fixed by the Hon'ble Supreme Court, no deposit has been made by the petitioner(s) till date; rather they have even stopped appearing before learned Appellate Court as is clear from the impugned order dated 20.07.2019 itself. Even thereafter, on 31.07.2019, petitioner(s) did not appear and now the matter is stated to be pending on 09.10.2019. Thus, the petitioner(s) are misusing the judicial forums on one pretext or the other and have made the mockery of the orders, passed by the entire judicial hierarchy including the Hon'ble Supreme Court. There is no hesitation to record that all these petitions have been filed with an ulterior motive to prolong the litigation and to harass the respondent/complainant so that he may not get his lawful claim despite being successful up to the highest Court of this 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 m .....

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..... GMENT MAHABIR SINGH SINDHU, J. This order shall dispose off the aforementioned 28 petitions being identical on facts and involving the common question for adjudication. 2) All the petitions have been filed under Section 482 of the Code of Criminal Procedure (for short 'Cr.P.C.') for setting aside the impugned orders dated 20.07.2019, passed by learned Additional Sessions Judge, Panchkula (hereinafter referred as 'Appellate Court'), thereby cancelling the suspension of sentence already granted to the petitioner(s) on account of their failure to deposit 25% amount of compensation in terms of the provisions of Section 148 of the Negotiable Instruments (Amendment) Act, 2018 (for short 'Amendment Act'), as directed by learned Appellate Court, vide order dated 01.12.2018 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 t .....

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..... eved against the order dated 01.12.2018 for deposit of 25% amount of compensation, petitioner(s) preferred 33 quashing petitions under Section 482 Cr.P.C., but remained unsuccessful as all the petitions were dismissed by this Court, vide order dated 24.04.2019 while relying upon a decision dated 04.04.2019, rendered in a bunch of cases i.e. CRR No.9872 of 2018 (O&M), reported as 'M/s Ginni Garments and another Versus M/s Sethi Garments', 2019 (2) R.C.R. (Criminal) 833 (hereinafter referred as 'M/s Ginni Garments case'). Dissatisfied with the order of this Court, the petitioner(s) preferred Special Leave Petitions, resulting in Criminal Appeal Nos.917-944 of 2019, but all were dismissed by the Hon'ble Supreme Court 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 .....

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..... of the petitioner(s) for deposit of the amount in question by learned Appellate Court, vide order dated 19.12.2018. Aggrieved against the above order for deposit of 25% amount of compensation, petitioner(s) approached this Court by way of 33 quashing petitions, but remained unsuccessful and lost up to Hon'ble Supreme Court (Deswal's case) and para Nos. 7.1, 8, 8.1, 9 & 10 of the same, being relevant, are reproduced as under:- 7.1 The short question which is posed for consideration before this Court is, whether the first appellate court is justified in directing the appellants - original accused who have been convicted for the offence 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 am .....

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..... ational Limited (supra), relied upon by the learned senior counsel appearing on behalf of the appellants shall not be applicable to the facts of the case on hand. Therefore, considering the Statement of Objects and Reasons of the amendment in Section 148 of the N.I. Act stated hereinabove, on purposive interpretation of Section 148 of the N.I. Act as amended, we are of the opinion that 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 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 appellan .....

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..... obtaining stay in the proceedings, an injustice was caused to the payee of a dishonoured cheque who has to spend considerable time and resources in the court proceedings to realize 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. 10. Now so far as the submission on behalf of the appellants, 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 Sec .....

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..... g successful up to the highest Court of this Country. Such litigants should be taken with stern hands to maintain the faith of the general public as well as the majesty of the law. 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 p .....

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..... . It seems that petitioner(s) have taken the Appellate Court for ride and they are under the impression that their right to remain on bail is absolute, indefeasible and unquestionable in any manner under the pretext that offence for which they have been convicted is bailable. This perception of the petitioner(s) is sadly mistaken, as conducting of smooth judicial proceedings is the paramount consideration for both sides i.e. petitioner(s) as well as respondent/complainant and maintenance of the sanctity of the Court proceedings. Still 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 t .....

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..... also initiated by the complainant. It transpires that both complaints resulted into the conviction for commission of an offence under Section 138 of the Act and sentence of imprisonment for two years with a further direction to pay compensation equivalent to the cheque amount. Above conviction and sentence were challenged by way of two separate appeals and sentence of the petitioners therein was suspended by the learned Appellate Court, vide order dated 02.04.2019 with the condition 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 48 .....

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..... is regard can be made to 'Commissioner of Income-tax, West Bengal II Versus Smt. Anusuya Devi, AIR 1968 Supreme Court 779 (Para 10). Again in the case of 'Sanjeev Coke Manufacturing Company Versus Bharat Coking Coal Ltd. and another', 1983 (1) SCC 147, para 11, Hon'ble Supreme Court held that:- Judicial pronouncements cannot be immaculate legal conceptions. It is but right 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 accumu .....

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