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TMI Blog2019 (7) TMI 1561X X X X Extracts X X X X X X X X Extracts X X X X ..... erest Act, 2002 (hereinafter referred to as 'the SARFAESI Act') towards directions of the appellate court to deposit certain percentage of the compensation or fine under Section 148 of the NI Act or not particularly when it is not disputed that amount involved proceedings under the SARFAESI Act and the NI Act 1881 are arising out of same transaction? (2) Whether on non-deposit of the amount as directed under Section 148 of the Negotiable Instrument Act, 1881, bail granted to the appellant is liable to be automatically/consequently cancelled? Some facts are required to be noticed. Petitioners herein (2 in number, one individual and second incorporate company ) had allegedly taken two credit facilities from Capital First Limited. Since, it is alleged that petitioners did not adhere to the financial discipline, defaulted in re-payment of monthly installments, therefore, petitioners issued cheques in favour of M/s Capital First Limited towards re-payment of the entire credit facility. Cheques were dishonored by the bank when presented for encashment resulting in filing of two complaints under Section 138 of the NI Act. Subsequently, Kotak Mahindra Bank was substituted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenance under different statutes, like proceedings under Section 125 Cr.P.C., Protection of Women from Domestic Violence Act, Hindu Marriage Act, payment in one proceeding is accounted for in another proceeding unless there is order to the contrary. Still further it is also well settled that no one can be called upon to pay more than what is due, even, if under different proceedings judgments and decrees or orders have been passed. Here is a case where parallel proceedings have been initiated under SARFAESI Act and the NI Act. Of course, proceedings under NI Act is not for recovery but provision for payment of interim compensation has been made to achieve recovery of some part of the amount. Appellate Court in the proceedings under NI Act has ordered deposit of 20% of the compensation amount in both the appeals, the sum total whereof, comes to Rs. 60,00,000/-, whereas respondent admittedly has recovered much more amount while selling mortgaged property belonging to the petitioners even after direction was issued by the appellate court. Now let's make an attempt to answer the questions framed in the beginning. Q.NO.1: "Whether a convict under Section 138 of the Negotiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompensation under this section.''. ''148. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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: Provided that the amount payable under this subsection shall be in addition to any interim compensation paid by the appellant under section 143A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal: Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section. 421. Warrant for levy of fine. (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. (2) The State Government may make rules regulating the manner In which warrants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount by attachment and sale of any movable property belonging to the offender. Second option is to issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. In view of the aforesaid provisions, it is clear that the interim compensation or compensation ordered by the Court while dealing with criminal case is liable to be accounted for in any subsequent civil suit or proceedings. Even otherwise, this court did not find that there is any prohibition or impediment in ordering adjustment. Let's try to examine this question from another angle. The intention of the legislature is to introduce provision for speedy recovery of some part of the amount representing the cheque amount as an interim measure. It is not the intention of the legislature that if some part of the cheque amount has already been recovered in a separate proceedings, may be civil proceedings, the amount ordered to be deposited as interim compensation or fine shall still liable to be deposited in the appeal or the trial Court. Let's evaluate the situation from another angle. As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioners. Q.No.2 Whether on non-deposit of the amount as directed under Section 148 of the Negotiable Instrument Act, 1881, bail granted to the appellant is liable to be automatically/consequently liable to be cancelled? On careful examination of Sections 143A and Section 148 of the NI Act, it is nowhere, specifically provided that if the payment as ordered has not been deposited, the bail granted shall be liable to be consequently cancelled. Section 143 do provide that recovery can be made of such defaulted amount as if it is a fine under Section 421 Cr.P.C., therefore, obviously during the trial of the case, the Court should not cancel the bail already granted on this ground alone. The offence under Section 138 of the NI Act is bailable. Still further, although, there is no provision in Section 148 of the NI Act for recovery of defaulted amount against appellant, however, the words used are "fine or compensation" awarded by the trial Court. Default in payment of certain percentage of compensation or fine, would not ipso facto result in cancellation of the bail. There are long series of judgments passed by the Hon'ble Supreme Court that normally conditions fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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