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TMI Blog2020 (5) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... earned A.G.A. for the State. 3. Brief facts of the case are that the proceedings under Section 138 of the N.I. Act were initiated against the revisionist with the allegation that two cheque no. 789636 and cheque no. 789637 dated 20.7.2014 for a sum of Rs. 5050 lacs each was issued by the revisionist, which has been bounced. Respondent no. 1 filed complaint case before the A.C.J.M, under Section 138 N.I. Act. The proceeding of complaint case has ultimately resulted in order of conviction awarding of one year simple imprisonment together with imposition of fine of Rs. 1crores 20 lacs. The amount of fine to be appropriated by paying Rs. 1crore 15 lacs to the complainant (respondent no. 1) and balance of Rs. 5 lacs to be deposited to the State. 4. Aggrieved by this judgment dated 25.9.2019 the revisionist has preferred an appeal before Sessions Court. This appeal has been admitted on 23.10.2019 and the revisionist has been enlarged on bail under Section 389 Cr.P.C. Further order has been passed upon the application filed by the revisionist to stay the conviction order/sentence awarded by learned Magistrate meanwhile respondent no. 1 also filed the application under Section 148 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng pendency of appeal. Meanwhile, the respondent (complainant) also filed the application before Sessions Court with prayer to comply the provision as envisaged in Section 148 (i) of the N.I. Act. By 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 appellate Court, while suspending the conviction and sentence under Section 389 of the Cr.P.C. Learned appellate court directed that the execution and suspension of conviction of appellant (revisionist) subject to deposit of 30% of the amount of compensation/fine awarded by the learned trial Court. 8. Learned counsel appearing on behalf of the revisionist vehemently submitted that in the present case as the criminal proceedings were initiated and the complaints were filed against the accused for the offence under Section 138 of 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. It is further submitted by the learned Advocate appearing on behalf of the revisionist that the legal proceedings, whether civil or criminal, are to be decided on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng such amount, must have regard to all relevant factors including the one referred to in SubSection (5) of 357 of the Code of Criminal Procedure; v) No unreasonable amount of compensation can be directed to be paid. 12. The Hon'ble Apex Court has clarified that 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. The Court has further clarified that appellate court shall be at liberty to put the appellant to terms which has to be reasonable and fair. The appellate court therefore while admitting the appeal and staying sentence has jurisdiction to put the apellant to terms which are reasonable and fair. 13. On account of the above submission and relying upon the aforesaid decision learned counsel for the revisionist prayed to allow the present revision and further prayed to quash and set aside the impugned order passed by the appellate court by which the revisionists have been directed to deposit 30% of the amount of the compensation/fine considering the provisions of Section 148 N.I. Act as amended. 14. Learned counsel for the respondent submitted that contention of the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich would save time and money". Further, it is expected that "the proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy. 17. In the wake of current scenario, The Negotiable Instruments (Amendment) Act, 2018 passed by both the Houses (Lok Sabha on July 23, 2018; Rajya Sabha on July 26, 2018; and notified on August 02, 2018) has come as a breather for the aggrieved Drawees. Nonpayment because of cheque dishonor contribute majorly towards business inconsistencies leading not only to an cash flow, but also chain of inconveniences/incalculable losses forced upon them involuntarily. 18. Further, delayed justice owing to lengthy court procedures add to the woes. Therefore, the Amendment Act aims to give potency in enforcing quick relief and to act as a deterrent for future cases by enhancing credibility of cheques as a negotiable instrument. Briefly, following are the key features of the latest 2018 amendment vide the added Sections 143A and 148: (a) Interim compensation to Drawee up to 20% of the cheque amount in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 complainant.'' 22. Every question raised by the revisionist in revision has already been settled by Hon'ble Apex Court in Surinder Singh Deswal @ Col. S. S. Deswal Vs Virender Gandhi AIR 2019 SC 2956, the relevant paragraph nos. 8, 9 and 10 are quoted below:" 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 138of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions, 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 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 mini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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