TMI Blog2020 (5) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... e to prosecution and partial payment upon dishonour of the cheque implying that the provisions are punitive as well as compensatory, that is, the punitive aspect leading to compensation. It can be ascertained that the Legislature has made a remarkable move by bringing this amendment in the interest of speedy justice. Thus, the applicability of the provision under Section 148 of the N.I. Act is mandatory. Deposit of fine not less than 20% is condition precedent for admission of appeal and provision under Section 357 (2) Cr.P.C. are not made applicable during admissibility and pendency of appeal. Section 148 of the N.I. Act can be applied to complaint filed prior to 1.9.2018 - there are no reason to interfere with the impugned order dated 23.10.2019 passed by the appellate sessions court directing the Appellants to deposit 30% of the amount of fine/compensation pending appeals. Revision dismissed. - Criminal Revision No. 4239 of 2019 - - - Dated:- 11-12-2019 - Suresh Kumar Gupta, J. For the Revisionist : Vikas Srivastava For the Opposite Party : A.,Balesh Tripathi,Jitendra Kumar Pandey.. ORDER HON'BLE SURESH KUMAR GUPTA, J. 1. This revision has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and second prayer is to set aside the order dated 23.10.2018 passed by Sessions Court. 6. So far as regards first prayer upon which the revisionist has challenged the order dated 25.9.2019 by filing revision with submission that the judgment under revision is manifestly erroneous, not sustainable in law and learned trial court failed to appreciate the evidence adduced by the complainant (respondent). It is further submitted that learned trial court has passed its judgment without any relevant and cogent reason. It has further been submitted that execution of the cheque has not been proved. He further prayed to allow the revision and set aside the impugned judgment and order dated 25.9.2019 passed by ACJM, Hapur. On perusal of the record it appears that revisionist has already availed the statutory remedy before Sessions Court under Section 374 (3) Cr.P.C. by way of filing an appeal and thus the revisionist have full opportunity to review or reappreciate the evidence as adduced in trial court. The appeal is a continuation of the proceeding only such proceeding where parties were same and they are adversely affected by the judgment, then they may file appeal. As stated above as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 30% of the amount of fine/compensation, pending appeal. In support of his above submission, learned Counsel has heavily relied upon the decision of this Court in the case of Vipin Kumar Vs. State of U.P. AIRONLINE 2018 ALL 4035 in which this Court held the right of appeal is statutory right available to accused and that deposit of such amount cannot be made a condition precedent for admission of appeal. It has also been held that ends of justice would be met if part of the order which directs furnishing of bank guarantee to the extent of 25% is modified and substituted with a direction to furnish personal bond and security in the form of surety of like amount to the extent of 25% of the amount.. 10. Learned counsel for the revisionist also submitted that once the appeal is admitted under the provisions contained under Section 357 (2) of the Code of Criminal Procedure, there shall be an automatic stay of the condition to deposit fine and that the conditions imposed by the appellate court in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the N.I. Act. It is submitted that in the present case, admittedly, the appeals were preferred after the amendment in Section 148 of the N.I. Act came into force and therefore Section 148 of the N.I. Act, as amended, is rightly invoked/applied by the learned first appellate Court. It is submitted that therefore the amendment so brought in the Act by insertion of Section 148 of the N.I. Act is purely procedural in nature 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. It is vehemently contended that after amendment in Section 148 of the N.I. Act the provisions of Section 357 (2) Cr.P.C. shall not be applicable. 15. Before arriving at any conclusion, I want to discuss the object behind the amendment made in Section 148 of the N.I. Act. With the objective of reducing delay in proceedings pertaining to dishonour of cheques and to provide interim relief to the payee in such cases, the Negotiable Instruments (Amendment) Bill of 2017 was tabled before the Lok Sabha. The Central Government has been receiving several representations from the public, including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (2), the amount is to be deposited within 60 days of the courts order, extendable by another 30 days subject to courts satisfaction. 19. A very pertinent feature of this interim compensation is that at the courts discretion it may be also recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973 implying that the courts have the power to issue a warrant for attachment and sale of any moveable property belonging to the offender (Drawer); or issue a warrant to the District Collector to realise the amount as arrears of land revenue from the moveable/immoveable property of the defaulter (Drawer). 20. Thus, the Drawer of the cheque is made liable to prosecution and partial payment upon dishonour of the cheque implying that the provisions are punitive as well as compensatory, that is, the punitive aspect leading to compensation. It can be ascertained that the Legislature has made a remarkable move by bringing this amendment in the interest of speedy justice. 21. The bill seek to achieve objective, introduce Amended Section 148 of the N.I. Act is as under:- 148. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, considering the object and purpose of amendment in Section 148 of the N.I. Act and while suspending the sentence in exercise of powers under Section 389 of the Cr.P.C., when the first appellate court directed the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court, the same can be said to be absolutely in consonance with the Statement of Objects 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 appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded Section 148 of the N.I. Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the N.I. Act, though it is true that in amended Section 148 of the N.I. Act, the word used is may , it is generally to be construed as a rule or shall and not to direct to deposit by the appellate court is an exception for which special reasons 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 Appellant Accused 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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