TMI Blog2022 (5) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and proceedings, the Court concerned may take the required steps to ensure that the appellant has approached the Court with a genuine and real case against the order of conviction and is not wasting the time and resources of the judicial machinery only to delay his conviction and punishment thereof. Such a check on filing of appeals cannot be said to be limited to the cases arising only after the amendment. If it is the intention of the legislature to provide for an effective measure to deal with the menace of unnecessary litigations, then such measure may be intended to be applied to cases where the proceedings under appeal are still underway and have been pending for years. In case of Section 148 of the NI Act, there is no substantive right that is being taken away by the enforcement of the amendment - the argument that Section 148 is not retrospective is rejected. The order passed by the learned ASJ could not have been said to be in excess of power, to the extent of imposition of the fine of 20% of the amount. Whether the condition as imposed by the learned ASJ, that the suspension of sentence will be vacated in case the fine amount is not deposited within the stipulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the NI Act will be extended to appeals arising out of complaint cases that have been filed prior to the amendment, it is found that the learned ASJ was not wrong in adjudicating upon an application under section 148 of the NI Act, at the given stage, and imposing the cost/fine/compensation of 20% of the amount imposed by the learned Trial Court. Hence, to the point of retrospectivity, this Court is satisfied that the contentions and grounds raised on behalf of the petitioners do not stand ground in the peculiar facts and circumstances of this case - it is found that the order passed was impermissible by law and not in accordance with the statute, for the reason that, firstly, the period prescribed for depositing fine awarded under the provision is of sixty days which may be extended for thirty days, yet the learned ASJ only granted a period of one month to the petitioners to deposit 20% of the fine/compensation in favour of the complainant, and secondly, imposing the condition of vacation of suspension of substantive sentence amounted to a review of its own order which is unsustainable by law. Petition allowed. - CRL.M.C. 702/2022 & CRL.M.A.2998/2022, CRL.M.C. 703/2022 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused thereafter. 5. Vide order dated 29th March 2012, the accused were summoned by the learned Metropolitan Magistrate and the accused claimed trial pleading not guilty. The Metropolitan Magistrate, after apprising itself of the facts and material on record, passed the judgment dated 27th February, 2018 and order on sentence dated 8th March, 2018, sentencing the accused no. 2 and accused no. 3, petitioners herein, to undergo simple imprisonment for one year alongwith fine of Rs. 7.5 Crores to be paid jointly and severally by all the convict persons including the accused no.1, Company, petitioner herein, as compensation to the complainant and in default of which simple imprisonment for three months. The accused also filed an application under Section 389 of the Cr.P.C. for suspension of sentence for the purpose of filing an appeal against the conviction order. 6. The accused, thereafter, approached the Court of learned Additional Sessions Judge against the judgment and order on sentence. The learned ASJ while entertaining the appeal in C.A. 178/2018, C.A. 177/2018, C.A. 176/2018 and C.A. 180/2018, passed the order dated 5th April, 2018, suspending the order of sentence passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 138 of the N.I. Act were preferred, Amendment Act No. 20/2018 amending Section 148 of the N.I. Act came into force w.e.f. 1.9.2018. Even, at the time when the appellants submitted application/s under Section 389 of the Cr.P.C. to suspend the sentence pending appeals challenging the conviction and sentence, amended Section 148 of the N.I. Act came into force and was brought on statute w.e.f. 1.9.2018. Therefore, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arded 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 according to the learned Senior Advocate for the appellants would be contrary to the provisions of Section 148 of the N.I. Act as amended is concerned, considering the amended 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 AppellantAccused under Section 389 of the Cr.P.C. to suspend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the amendment shall not be made applicable retrospectively and more particularly with reference to cases/complaints filed prior to 01.09.2018 and held that with the amendment incorporating Section 148 into N.I Act, no substantive right of appeal has been taken away and/or effected. 15. The Apex Court in Surinder's case (supra) had held that the power under Section 148 N.I. Act to issue direction to the accused to deposit a sum, which shall not be less than 20% of the fine or compensation can be invoked by the appellate court either on an application filed by the accused under Section 389 Cr.P.C seeking to suspend the sentence or on an application filed by the complainant seeking deposit. 16. The power under Section 148 is meant to be invoked by the appellate court while entertaining an appeal from a judgment of conviction imposing sentence on the accused. That is why, it was held as applicable to complaints filed to launch the prosecution under Section 142 N.I. Act and pending before the courts, prior to 01.09.2018. 17. That does not mean that the provision is meant to be invoked in all Crl. Appeals pending before the appellate court which are at the fag end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entence under challenge in Crl.A.156/2016 was suspended. The order suspending the execution of the sentence was passed immediately after preferring Criminal Appeal challenging the judgment of the trial court. Rs. 75,000/- of the compensation amount is now under deposit from the side of the appellant. The appeal in question is found originated from a complaint filed in the year 2015. The appeal is filed two years prior to incorporation of Section 148 into the N.I. Act. Since the appeal was admitted and an order suspending the execution of the sentence was passed after 2 years of incorporation of Section 148 into the N.I. Act and Rs. 75,000/- as directed by the Court was deposited as a condition precedent for suspending execution of sentence in the appeal, the trial court is highly unjustified in re-opening the prosecution which was almost concluded and posted for judgment for the purpose of consideration of Crl.M.P No. 721/2019 and to pass the impugned order. Annexure A2 order, undoubtedly is an erroneous one as it was passed in total disregard of the object and reasons of the Parliament while incorporating Section 148 into the Act. The Apex Court has held that Section 148 has appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive in nature and confined to cases where offences were committed after the introduction of Section 143-A, in order to force an accused to pay such interim compensation. 22. We must, however, advert to a decision of this Court in Surinder Singh Deswal v. Virender Gandhi [Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 : (2019) 3 SCC (Cri) 461 : (2019) 3 SCC (Civ) 765 : (2019) 8 Scale 445] where Section 148 of the Act which was also introduced by the same Amendment Act 20 of 2018 from 1-9-2018 was held by this Court to be retrospective in operation. As against Section 143-A of the Act which applies at the trial stage that is even before the pronouncement of guilt or order of conviction, Section 148 of the Act applies at the appellate stage where the accused is already found guilty of the offence under Section 138 of the Act. It may be stated that there is no provision in Section 148 of the Act which is similar to sub-section (5) of Section 143-A of the Act. However, as a matter of fact, no such provision akin to sub-section (5) of Section 143-A was required as Sections 421 and 357 of the Code, which apply post-conviction, are adequate to take care of such requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of this sentence; discretion is given to the Appellate Court to direct the appellant to deposit the sum but if at all such direction is given, that sum should not be less than 20% of the amount of fine or compensation awarded by the trial Court. Thus, the court has discretion and it may not pass the order but if the order is passed, then, the minimum amount payable should be 20% of the fine or compensation. 22. The grievance is made by Mr. Jha that if the accused has no capacity to pay the amount under section 148 pending appeal, then, the accused should not be deprived of his right to appeal or his right to be on bail. It is true and correct that if the accused is on bail throughout the trial and when the offence is bailable, the statutory appeal is provided and if the offence is bailable, then his right to be on bail and enjoy his liberty throughout the appeal period should not be taken away unless some special ground is made out. It is a fundamental right protected under Article 21 of the Constitution of India. However, the submissions of Mr. Jha that the section is ultra vires is not sustainable in these Criminal Writ Petitions. 23. The criminal Courts have powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compensation. The stipulated time of 60 days to deposit the said amount is extended till 90 days as this litigation was going on. If it is not deposited within the 90 days, the accused will have to pay interest at the rate of 18% from the date of this order, if the conviction is maintained finally. 14. It is further submitted that there is no definite consequence prescribed under Section 148 of the NI Act in case the appellant fails to deposit of the requisite percentage of the fine and hence, the cancellation of an already granted bail and suspended sentence could not have been the consequence accruing to non-payment of the fine/compensation amount. In Vivek Sahni Anr vs. Kotak Mahindra Bank Ltd., 2019 SCC OnLine P H 2668, while dealing with the question whether on non-deposit of the amount as directed under Section 148 of the NI Act bail granted to the appellant is liable to be automatically/consequently cancelled, the undermentioned observations were made by the Punjab and Haryana High Court:- 25. On careful examination of Sections 143A and Section 148 of the NI Act, it is nowhere, specifically provided that if the payment as ordered has not been deposited, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order by the learned ASJ would amount to review of its own order, which is not permissible under law. 17. Learned senior counsel for the petitioners submitted that the impugned order passed by the learned ASJ suffers from severe illegalities, is perverse, against the settled principles of law and hence, liable to be set aside. 18. Per Contra, Mr. Kanwal Chaudhary, learned counsel for the respondent no. 2 vehemently opposed the position presented on behalf of the petitioner. It is submitted that the application filed under Section 148 of the NI Act was maintainable and in accordance of law laid down under the Act as well as with the interpretation given by the Hon ble Supreme Court in various cases. 19. It is submitted that there is no doubt to the fact that the amendment that came into force on 1st September, 2018, thereby, introducing Section 148 to the NI Act, is retrospective in nature. The position is clear in light of the judgments of Surender Singh Deswal (2019), Surender Singh Deswal @ Col S.S. Deswal Ors vs. Virender Gandhi, (2020) 2 SCC 514, as well as G.J. Raja (Supra). Hon ble Supreme Court has made it clear that relief under Section 148 of the NI Act woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. Hence, the impugned order is absolutely legal, proper and in accordance with law and there is no substantial ground to allow the instant petition. ANAYSIS AND FINDINGS 23. Heard learned counsel of the parties at length and perused the record, including the impugned order. 24. Before delving into the discussion of the issue at hand the provision of the NI Act, as brought into force by the amendment of 2018 on 1st September, 2018, is required to be perused. The provision forms the basis of the arguments advanced by the counsel for the parties. Section 148 of the Act is reproduced as under:- 148. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 sub-section shall be in addition to any interim compensation paid by the appellant under section 143A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect the convicted appellant-accused 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 NI Act, it cannot be said that any vested right of appeal of the appellant-accused has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in Section 148 of the NI Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 1-9-2018 shall not be applicable has no substance and cannot be accepted, as by amendment in Section 148 of the NI Act, no substantive right of appeal has been taken away and/or affected. Therefore the decisions of this Court in Garikapati Veeraya and Videocon International Ltd., 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 NI Act stated hereinabove, on purposive interpretation of Section 148 of the NI Act as amended, we are of the opinion that Section 148 of the NI Act as amended, shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective in operation. As against Section 143-A of the Act which applies at the trial stage that is even before the pronouncement of guilt or order of conviction, Section 148 of the Act applies at the appellate stage where the accused is already found guilty of the offence under Section 138 of the Act. It may be stated that there is no provision in Section 148 of the Act which is similar to sub-section (5) of Section 143-A of the Act. However, as a matter of fact, no such provision akin to sub-section (5) of Section 143-A was required as Sections 421 and 357 of the Code, which apply post-conviction, are adequate to take care of such requirements. In that sense said Section 148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143-A of the Act. Therefore, the decision of this Court in Surinder Singh Deswal [Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 : (2019) 3 SCC (Cri) 461 : (2019) 3 SCC (Civ) 765 : (2019) 8 Scale 445] stands on a different footing. 29. The opinion of the Hon ble Supreme Court, as can be derived from the extracts reproduced above, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realise the value of the cheque. Such delays compromise the sanctity of cheque transactions. 2. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etrospective in nature and having applicability over complaints that have been filed prior to the amendment. This reflects the intention of the Hon ble Apex Court to not extinguish the relief as intended to be granted to the complainant under Section 148. The interpretation may be construed to mean that any appeal which is emanating from a complaint filed prior to the amendment will fall within the ambit of the nature of cases as described by the Hon ble Supreme Court and Section 148 would apply to such cases. The idea is also to give purposive interpretation to Section 148 to extend applicability to cases which were filed when the remedy was not available to the complainant under Section 148 of the NI Act. The extensive interpretation would only serve the objective intended by the legislature. 34. It is a settled principle of law that an amendment that does not take away a substantive right is purported to be retrospective in nature and if it does, the applicability of the said amendment would be prospective. Moreover, the principle on retrospectivity has also been discussed by the Hon ble Supreme Court in G.J. Raja (Supra) while referring to Hitendra Vishnu Thakur vs. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvict/appellant. Therefore, the argument that Section 148 is not retrospective is rejected. The order passed by the learned ASJ could not have been said to be in excess of power, to the extent of imposition of the fine of 20% of the amount. 36. The second question before this Court is that whether the condition as imposed by the learned ASJ, that the suspension of sentence will be vacated in case the fine amount is not deposited within the stipulated period, amounted to modification or review of order and hence, impermissible by law. The bar on modification of an order/judgment finds its existence under the Cr.P.C. The provision is stated as under:- 362. Court not to alter judgment.- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. The provision makes it clear that the bar on alteration of judgment or order is on the judgment or final order and not just any order passed during the pendency of the proceedings, including any interlocutory order. The words used in the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the fine is levied under Section 148 of the NI Act and the appellant fails to pay it within the given period, a bail granted under Section 138 of the NI Act, which itself is a bailable offence, would not ipso facto be cancelled upon nonpayment. However, such is not the case in the instant petition. Here, the sentence of the petitioners was already suspended with other conditions in place and the learned ASJ upon appreciating the changes brought about by the amendment of 2018 in the NI Act imposed the condition of vacation of order of suspension. 39. It is true that Section 148 of the NI Act does not provide for any sanction or punishment for non-payment of the fine / compensation amount, however, the same is to be decided by the Court concerned in accordance with the facts and circumstances of each case, the sentence in question, the material on record, the likelihood of the appellant to evade the process of justice and such other factors. It is found that the learned ASJ did not have the power to touch upon the basic relief granted to the appellant by suspension of sentence and overturn it completely vide the impugned order at that stage, that is, when the suspension ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , would be illegal. The appellate court has no power to reduce or curtail the period provided in the statute to comply with an order for deposit of amount. The appellate court has got no discretion in the matter. It is mandatory for the appellate court to grant a period of sixty days to the accused/appellant to comply with an order passed under Section 148(1) of the Act. 14. Therefore, Annexure-II order passed by the appellate court, as far as it pertains to the time granted to the accused/appellant for depositing the amount, cannot be sustained in law. 42. The learned ASJ was bound to abide by the provision and the terms it provides. When the provision itself stipulates a period of sixty days within which fine imposed may be paid then imposing a period of one month was illegal and unsustainable in law. The learned ASJ passed the order in contradiction to the provision when it granted only a month s time to deposit the payment of 20% of the fine/compensation amount, when Section 148 itself makes provision for a payment within sixty days which may be extended for thirty days but not thereafter. Hence, the impugned order was contrary to law and illegal since the learned ASJ ..... 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