TMI Blog2022 (9) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar D., learned counsel for the petitioner and Sri Raghavendra V., learned counsel for the respondent. 3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:- The petitioner is the accused and the respondent is the complainant. Petitioner and the respondent had generated dispute with regard to certain transaction and had issued a cheque in favour of the complainant towards the said transaction. On the cheque being dishonoured, proceedings were instituted by the complainant invoking Section 200 of the Cr.P.C. in C.C. No. 3022/2013. The learned Magistrate convicts the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') and imposes a fine amount of Rs. 5,20,000/-. The petitioner prefers an appeal in Crl.A. No. 150005/2022 against the said order, before the learned Sessions Judge. The learned Sessions Judge by his order dated 29.03.2022, suspends the sentence subject to the petitioner herein depositing 20% of the fine amount before the trial Court within 60 days from the date of the said order. The period of 60 days from the date of the order i.e., 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counter to the statute and, therefore, it has to be modified for a deposit of 20% with liberty to the petitioner to withdraw the same in terms of the statute. 5. On the other hand, the learned counsel appearing for the respondent would refute the submissions to contend that the Amendment Act of 2018 is prospective and the transaction that has taken place in the case at hand is prior to the amendment. The discretion is available to the learned Sessions Judge to direct deposit of appropriate amount and exercising such discretion, the appellate Court has directed deposit of 10%. Therefore, the petitioner has no right to seek modification of the said order. 6. I have given my anxious consideration to the submissions made by the petitioner and the learned counsel for the respondent and perused the material on record. 7. To consider the issue in the petition it is germane to notice Section 148 of the Act. One of the amendment that was brought about was to Section 148 of the Act by Act 20 of 2018 by way of insertion. Section 148 of the Act as it stands today reads as follows: 148. Power of Appellate Court to order payment pending appeal against conviction. (1) Notwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. What would emerge from the scheme of Section 148 is that the Appellate Court has no discretion to reduce the amount so stipulated under sub-section (1) of Section 148 of the Act to be deposited by the drawer of the cheque who files an appeal on his conviction i.e., 20% of the total fine amount or compensation awarded by the trial Court and in addition to interim compensation awarded during the pendency of the trial. Therefore, the word 'may' will have to be read as 'shall' as the statute does not confer any discretion to reduce the minimum from 20%. This has to be deposited within 60 days extendable by 30 days on sufficient cause being shown. Therefore, there can be no extension also that could be granted by the learned Sessions Judge for deposit of the amount. Sub-section (3) of Section 148 confers discretion on the Appellate Court for directing release of the amount deposited by the appellant in favour of the complainant as the words deployed are 'the Appellate Court may direct' and 'at any time during the pendency of the appeal'. The statute therefore here vests/confers such discretion upon the appellate Court for directing payment to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy 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 general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy. 3. It is, therefore, proposed to introduce the Negoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellants that as the criminal complaints against the appellants under Section 138 of the NI Act were lodged/filed before Amendment Act 20 of 2018 by which Section 148 of the NI Act came to be amended and therefore amended Section 148 of the NI 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 NI Act were preferred, Amendment Act 20 of 2018 amending Section 148 of the NI Act came into force w.e.f. 1-9-2018. Even, at the time when the appellants submitted application(s) under Section 389 CrPC to suspend the sentence pending appeals challenging the conviction and sentence, amended Section 148 of the NI Act came into force and was brought on statute w.e.f. 1-9-2018. Therefore, considering the object and purpose of the amendment in Section 148 of the NI Act and while suspending the sentence in exercise of powers under Section 389 CrPC, 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 Statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 NI Act, as amended. 8. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the NI 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 according to the learned Senior Advocate for the appellants would be contrary to the provisions of Section 148 of the NI Act as amended is concerned, considering the amended Section 148 of the NI Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the NI Act, though it is true that in the amended Section 148 of the NI Act, the word used is may , it is generally to be construed as a rule or shal and not to direct to deposit by the appellate court is an except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 SCC 528 : (2007) 3 SCC (Cri) 209] is concerned, the aforesaid has no substance. The opening words of the amended Section 148 of the NI Act are that notwithstanding anything contained in the Code of Criminal Procedure... . Therefore irrespective of the provisions of Section 357(2) CrPC, pending appeal before the first appellate court, challenging the order of conviction and sentence under Section 138 of the NI Act, the appellate court is conferred with the power to direct the appellant to deposit such sum pending appeal which shall be a minimum of 20% of the fine or compensation awarded by the trial court. 10. In view of the above and for the reasons stated hereinabove, the impugned judgment and order [Surinder Singh Deswal v. Virender Gandhi, 2019 SCC Online P H 746] passed by the High Court does not call for any interference. 11. At this stage, the learned Senior Advocate appearing on behalf of the appellants has requested to grant the appellants some more time (three months' time) to deposit the amount as per the order passed by the first appellate court, confirmed by the High Court. The said prayer is opposed by the learned Advocate appearing on behalf of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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