TMI Blog2020 (9) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... on-payment of compensation within 4 months. Petitioner, in alternative, has also prayed to permit him to deposit the amount directed by Appellate Court, in installments on such terms and conditions as may be deemed proper. Complaint was decided and petitioner was convicted on 30.5.2015 and thereafter impugned order was passed on 30.6.2015. Now, we are in June 2020. The cheque amount was of ₹ 6 lacs, whereas compensation imposed by the trial Court is double thereof i.e. ₹ 12 lacs. At the time of passing of order, condition of deposit 50% of amount of ₹ 6 lacs was imposed about 5 years back. Therefore, prayer of petitioner to grant him time to deposit the amount in installments is concerned, that has also lost force after lapse of 5 years - However taking a lenient view, liberty is granted to petitioner to make such prayer before the Appellate Court and if such prayer is preferred before the First Appellate Court, the same shall be considered by the Appellate Court. Petition dismissed. - Cr. MMO No. 14 of 2016 - - - Dated:- 22-6-2020 - The Hon ble Mr. Justice Vivek Singh Thakur For the Petitioners : Mr. Neeraj Gupta, Sr. Advocate with Mr. Janesh Gupt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stinct meaning and effects. Though compensation amount can be directed to be recovered as fine but fine stands at a higher footing than the compensation awarded by the Court and compensation, so imposed, under Section 357 (3) Cr.P.C., can only be recovered but at the time of staying the substantive part of sentence, the same cannot be ordered to be deposited as the same does not form part of fine and under Section 389(1) of Cr.P.C. the Appellate Court can only call for deposit of fine which is mandatory but not compensation and, therefore, direction to accused to deposit the compensation, at the time of exercising power under Section 389(1) of Cr.P.C., is in excess of jurisdiction. 5 Complaint in the present case was filed on 5.1.2013, which was decided on 30.5.2015 convicting and sentencing the petitioner detailed supra. Petitioner has preferred appeal on 19.6.2015 wherein impugned order dated 30.6.2015 has been passed by the Appellate Court with direction to deposit 50% of compensation amount within four months. 6 Earlier there was no specific provision under NI Act, providing the Appellate Court to pass an order to deposit a sum of fine/compensation in an appeal preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was enacted and Section 138 thereof was incorporated with a specific object of making a special provision by incorporating a strict liability with respect to the cheque, a Negotiable Instrument. Law relating to NI Act is the law of commercial world, legislated to facilitate the activities in trade and commerce by making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another and in absence of such instrument, including a cheque, the trade and commercial activities, in the present day world, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force and further that laws relating to NI Act are, required to be interpreted in the light of objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for redressal of the grievances to the litigants. Further that Section 138 of the NI Act makes a civil transaction to be an offence by fiction of law. 10 The Apex Court in Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd and another, reported in (2007)6 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such term could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right; (iii) the amount of compensation must be a reasonable sum; (iv) the court, while fixing such amount, must have regard to all relevant factors including the one referred to in sub-section (5) of Section 357 of the Code of Criminal Procedure; (v) no unreasonable amount of compensation can be directed to be paid. 15 The Apex Court in Surender Singh Deswal and others vs. Virender Gandhi, reported in (2019)11 SCC 341, has held that amended Section 148 of NI Act is to be purposively interpreted in such a manner so as to serve the Object and Reasons of not only amendment under Section 148 but also Section 138 of NI Act and 15use of word may in Section 148 NI Act has to be read as shall and Appellate Court must ordinarily order deposit of minimum 20% of compensation or fine amount imposed by trial Court and not to direct to deposit by Appellate Court is an exception for which special reasons are to be assigned. The Apex Court in this case has upheld the application of Section 148 of NI Act in a case where complaint under Section 138 of NI A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer by Court under Section 148 of NI Act. Therefore, at the time of suspension of sentence, Appellate Court, has empowered to impose condition to deposit of fine or compensation or part thereof, prior to insertion of Section 148 of NI Act and now, in view of Section 148 of NI Act, this power has been expressly confirmed not only at the time of suspension of sentence but at any time during appeal. At the time of directing to deposit the quantum of amount should be determined keeping in view nature of lis, capability and capacity of parties to bear burden and statutory right to appeal viz-a-viz provisions of Section 148 of NI Act. This power can be exercised by Appellate Court even in appeals preferred before insertion of Section 148 of NI Act, which are pending adjudication, irrespective of the fact that such condition was not imposed at the time of suspension of sentence, while appeal was preferred. 18 In the present case, trial Magistrate has imposed compensation to be paid to complainant with default clause of imprisonment of one year in case petitioner fails to pay the compensation, within four weeks. Sction 138 of NI Act empowers the Court to levy a fine which may extend twi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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