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TMI Blog2019 (8) TMI 1782X X X X Extracts X X X X X X X X Extracts X X X X ..... to deposit 25% of the amount of compensation awarded by the Trial Court to the tune of Rs. 6.00 crores in accordance with the provisions of Section 148 of the Negotiable Instruments Act. No substantive sentence has been passed by the Trial Court. 4. The petitioner's challenge to the impugned order is limited to the extent that the impugned order is illegal, arbitrary, unconstitutional and discriminatory as it has been passed without assigning any reasons or without appreciating the records and proceedings. It is the contention of the learned Counsel for the petitioner that the impugned order needs to be quashed and set aside to the extent it directs the petitioner to deposit 25% of the amount of compensation awarded by the Trial Court, inter alia, directing the learned Additional Sessions Judge to hear the parties and decide, if the petitioner is liable to pay/deposit any amount pending the final hearing of Criminal Appeal No. 60/2019. 5. It is needless to go into the factual matrix of the case since a very limited prayer is made in the petition invoking inherent jurisdiction of this Court under Section 482 of the Criminal Procedure Code, inter alia, Article 227 of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Counsel for the respondent, this is nothing but the abuse of the process of Court and therefore submits that the petition be dismissed with exemplary costs. 11. In Surinder Singh Deswal (supra), the Hon'ble Supreme Court held as under: "7.1 The short question which is posed for consideration before this Court is, whether the first appellate court is justified in directing the appellants - original accused who have been convicted for the offence under Section 138 of the N.I. Act to deposit 25% of the amount of compensation/fine imposed by the learned trial Court, pending appeals challenging the order of conviction and sentence and while suspending the sentence under Section 389 of the Cr.P.C., considering Section 148 of the N.I. Act as amended? 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 amended by way of Amendment Act No. 20/2018 and Section 148 of the N.I. Act as amended, are required to be referred to and considered, which read as under: "The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (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 from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 shall not be applicable has no substance and cannot be accepted, as by amendment in Section 148 of the N.I. Act, no substantive right of appeal has been taken away and/or affected. Therefore the decisions of this Court in the cases of Garikapatti Veeraya (supra) and Videocon International Limited (supra), relied upon by the learned senior counsel appearing on behalf of the appellants shall not be applicable to the facts of the case on hand. Therefore, considering the Statement of Objects and Reasons of the amendment in Section 148 of the N.I. Act stated hereinabove, on purposive 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 138 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otiable Instruments Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of the dishonoured of cheques. So as to see that due to delay tactics by the unscrupulous drawers of the dishonoured cheques due to easy filing of the appeals and obtaining stay in the proceedings, an injustice was caused to the payee of a dishonoured cheque who has to spend considerable time and resources in the court proceedings to realise the value of the cheque and having observed that such delay has compromised the sanctity of the cheque transactions, 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." 12. The ratio is squarely applicable herein. 13. Amendment Act No. 20/2018 amending Section 148 of the Act came into force with effect from 01/09/2018. Considering the object and purpose of amendment in Section 148 of the Act and while suspending the sentence in exercise of powers under Section 389 of the Criminal Procedure Code, when the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for suspension of the sentence which is default sentence and therefore the appellant shall deposit 25% of the amount of compensation awarded by the trial court of Rupees Six Crores in accordance with the provision of Section 148 of NI Act, and in view of the above decision cited before me by the Advocate for the respondent. Hence, I pass the following: ORDER The application is allowed accordingly and the appellant is directed to deposit 25% of the compensation/fine amount awarded by the trial court." 16. Admittedly, no substantive sentence has been passed by the Trial Court. What has been directed by the Trial Court is only the payment of compensation and in default of payment of the same, the petitioner is directed to undergo simple imprisonment for two years. Once it is held by the Supreme Court that the word "may" in Section 148 sub-section (i) to be construed as "rule" or "shall", there is no question of exercising discretion by the Court not to direct to deposit by the appellant which is an exception. The petitioner who has already been convicted after a full fledged trial has rightly been directed to deposit 25% of the amount of compensation awarded. 17. As h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case. It is observed that the legislature has intentionally not used the word "shall" since it would have prevented the accused persons, even in genuine cases, from defending themselves without paying 25% as interim compensation amount to the complainant. It is not the case in hand. The petitioner herein has been convicted and while in appeal, the learned Additional Sessions Judge in view of the judgment laid down by the Supreme Court in case of Surinder Singh Deswal (supra) rightly exercised her jurisdiction in directing payment of compensation as above. The ratio, therefore, can be distinguished accordingly. 20. In case of Assistant Commissioner (supra), the learned Counsel for the petitioner has drawn my attention to paras 13, 14 and 21 of the judgment which read as under: 13. At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies; (3) to communicate the reasons for the decision to the public; and (4) to provide reasons for an appeal Court to consider." Clarity of thought leads to proper reasoning and proper reasoning is the foundation of a just and fair decision. In Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 ICR 120, the Court went to the extent of observing that "Failure to give reasons amounts to denial of justice". Reasons are really linchpin to administration of justice. They are link between the mind of the decision taker and the controversy in question. To justify our conclusion, reasons are essential. Absence of reasoning would render the judicial order liable to interference by the higher Court. Reasons are the soul of the decision and its absence would render the order open to judicial chastism. The consistent judicial opinion is that every order determining rights of the parties in a Court of law ought not to be recorded without supportive reasons. Issuing reasoned order is not only beneficial to the higher Courts but is even of great utility for providing public understanding of law and imposing self-discipline in the Judge as their discretion is controlled by well established norms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... participated in the trial. 22. The learned Counsel for the respondent in support of his contentions placed reliance on a judgment of the Bombay High Court in Floyd D. Aguiar V/s. Bronwyn D. Aguiar & Anr. [2007 1 Bom.C.R.(Cri.) 912] and submitted that jurisdiction of the High Court under Article 227 is discretionary. Such powers of judicial superintendence have to be exercised sparingly and only to keep the subordinate courts within the bounds of their authority. Paras 8 & 11 of the judgment read thus: "8. So far as power under Article 227 of the Constitution of India is concerned, it is true that it is very wide. The power can be used to meet the ends of justice. The said power can be exercised to interfere even with an interlocutory order. However, the jurisdiction under Article 227 of this Court is discretionary. The power under Article 227 being a power of judicial superintendence has to be exercised sparingly and only to keep sub-ordinate Courts within the bounds of their authority. It cannot be said that availability of remedy of revision before the Sessions Court takes away the jurisdiction of the High Court to exercise powers under Article 227 of the Constitution of India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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