TMI Blog2021 (12) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... The difference in the amount of cheque and the figure mentioned by the petitioners was duly explained by the complainant. The defence raised that it is a case of misuse of cheque for security, was met by the complainant by producing documents. The contention raised on behalf of Sarabjeet Singh Wadhawan that he is neither a partner nor signatory to the cheque, does not enhance the case for waiver of pre-deposit. He stated that he was looking after the day-to-day affairs of firm. In cross-examination, he admitted his signatures on balance confirmation. The resignation of Simarpal Singh Wadhawan was found to be self-serving document. He deposed that after his resignation, Manjit Kaur and Sarabjeet Singh Wadhawan were partners whereas earlier Manjit Kaur and Simarpal Singh Wadhawan were partners - contention that conditions under Section 141 of the Act are not satisfied qua Simarpal Singh Wadhawan and Sarabjeet Singh Wadhawan was dealt with by the trial Court and would be subject matter of the appeal. It is not the stage to re-appreciate the evidence and to deal in detail with fulfilment of pre-requisites of Section 141 of the Act. SMS PHARMACEUTICALS LTD. VERSUS NEETA BHALLA [ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to furnishing bail bonds of ₹ 1,00,000/- and making pre-deposit of 20% of the compensation amount within a period of one month. [4] Revision Petitions were filed against the orders of pre-deposit. This Court on 1st October, 2021, set aside the impugned orders and the matter was remanded back to be decided afresh in view of decision of the Supreme Court in Surinder Singh Deswal @ Col. S.S. Deswal and others Versus Virender Gandhi, (2019) AIR SC 2956. After remand, vide orders dated 6th October, 2021, the petitioners were directed to make pre-deposit of 1/3rd of 20% of the compensation amount within a period of one month hence, these criminal revision petitions. [5] Following common arguments were raised by learned counsel for the petitioners in all the three petitions:- That complaint under Section 138 of the Act was liable to be dismissed as the amount of cheque presented was more than the liability. Contention is that liability of petitioners was ₹ 70,09,773/- whereas cheque presented was of ₹ 71,49,773/-. Reliance is placed on the decisions of Delhi High Court in Lyca Finance Ltd. Versus State and another, (2016) SCC Online Del 4198 and All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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. [9] The Supreme Court in Surinder Singh Deswal's case (supra) dealing with the 2018 amendment of Section 148 of the Act held as under:- ''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 is vested with the first appellate court to direct the appellant - accused to deposit such sum and the appellate court has construed it as mandatory, which acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties to pay the amount in installments of ₹ 1,50,000/- and 80-90 cheques were issued for the payment of installments. The Income Tax Return ('ITR') of the complainant for the Assessment Year 2018-19 was exhibited showing firm as sundry debtors to the tune of ₹ 70,09,773/-. In the cross-examination, DW-2, Simrapal Singh Wadhawan deposed that presently there were two partners in firm i.e. Sarabjeet Singh Wadhawan and Manjit Kaur, earlier he was partner with Manjit Kaur. The trial Court noted the fact that Simarpal Singh Wadhawan in his statement recorded under Section 263 (g) Cr.P.C., never mentioned the fact of his resignation from the firm. The cheque was issued by Manjit Kaur, Partner of firm for a sum of ₹ 71,49,773/-. The difference between the amount shown in ITR and cheque amount was explained by the complainant. [13] It would be pertinent to quote the relevant paragraph of decision in Surinder Singh Deswal's case (supra) where reasons and objects of the amendment were dealt with:- 7.2 While considering the aforesaid issue/question, the Statement of Objects and Reasons of the amendment in Section 148 of the N.I. Act, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be a minimum of twenty per cent of the fine or compensation awarded by the trial court. 4. The Bill seeks to achieve the above objectives. [14] It is settled law that general rule under Section 148 of the Act is of pre-deposit and waiver is only an exception for which special reasons need to be assigned. [15] It would not be appropriate to pre-judge the appeal at the stage of deciding the waiver of pre-deposit. The petitioners have filed Criminal Miscellaneous Applications annexing their bank account statements and their concerns to support the contention that they are not financialy capable to make the pre-deposit. [16] There is no pleading that firm is not continuing with its business. Mere balance of the bank account cannot form a basis for inability to pay. It is business prudence of an entrepreneur to manage its affairs and to fix the priorities. [17] The trial Court considering the facts and appreciating the evidence adduced convicted petitioners under Section 138 of the Act. The difference in the amount of cheque and the figure mentioned by the petitioners was duly explained by the complainant. The defence raised that it is a case of misuse of cheque f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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