9911796707
TMI Blog2024 (1) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... ietor of M/s. Ena International, had approached the complainant i.e., M/s. SBI Global Factors Limited for Export Factoring Facilities and the complainant had granted the same to the accused vide Export Factoring Agreement dated 19.04.2008. Against the total outstanding amount of Rs. 4.99 crores (approximately) as on 13.03.2009, the accused had issued four cheques in favour of the complainant company, amounting to a total of Rs. 4.4 crores. The accused had assured the complainant that these cheques would be honoured upon presentation and on such assurance, the complainant had presented these cheques with its banker on 13.03.2009. However, these cheques had returned dishonoured vide cheque return memo dated 13.03.2009 with the remarks 'Funds Insufficient'. Thereafter, the complainant had issued a legal notice dated 25.03.2009 to the accused seeking payment of the amount in question. However, since the accused had failed to either reply to the legal notice or make any payment, the complainant had filed the present complaint under Section 138 of the NI Act. 3. Learned Metropolitan Magistrate-04 (NI Act), New Delhi District, Patiala House Courts, Delhi, vide judgment dated 17.07.2019 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute Resolution Commission (NCDRC). Learned Senior Counsel relies upon the decision of Hon'ble Apex Court in case of Jamboo Bhandari v. M.P. State Industrial Development Corporation 2023 SCC OnLine SC 1144, to contend that imposition of 20% amount of compensation/fine, as a pre-condition for filing appeal against conviction, is not an absolute rule and the Appellate Courts can consider the exceptional circumstances which warrant grant of suspension of sentence without imposing such a condition. It is stated that firstly, the petitioner is a senior citizen, aged about 57 years, and has been suffering from Multiple Sclerosis since 1998, which has affected her brain. Secondly, it is submitted that the complainant had already filed two consumer complaints before NCDRC against New India Insurance Company Limited seeking the same amount. Thirdly, it is stated that the petitioner had filed an insolvency petition before Saket Courts, New Delhi seeking a direction to declare the petitioner as undischarged insolvent, and that the petitioner has not been earning any income which is assessable as income tax after assessment year 2010-11; further, the petitioner had also suffered a loss of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Procedure Code, 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 "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 NI 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 appellant-accused under Section 389 CrPC to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the NI Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the appellant. Therefore, if amended Section 148 of the NI Act is purposively interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded." 13. Having taken note of the settled position of law, the three exceptional circumstances, as narrated by the learned Senior Counsel for the petitioner, which makes the petitioner entitled to seek waiver from depositing the 20% amount of fine, are summarized as under: i. The petitioner had filed an insolvency petition, under the Provincial Insolvency Act, 1920, seeking a direction to declare the petitioner as "undischarged insolvent", since the petitioner has not been earning any income which is assessable as income tax after the assessment year 2010-11, and she had suffered a loss of Rs. 10,66,82,746/-, due to economic depression in the year 2009. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedents, this Court is of the opinion that the present case be remanded back to the learned Sessions Court/Appellate Court for deciding afresh, as to whether the three exceptional circumstances being raised by the petitioner herein fall within the category of exceptional circumstances so as to warrant waiver of condition to deposit 20% of fine amount during the pendency of appeal against conviction under Section 138 of NI Act. The petitioner shall also be at liberty to bring any other exceptional circumstance to the notice of the learned Sessions Court. 18. It is directed that the learned Sessions Court/Appellate Court shall decide the issue in question within a period of two months from date of receipt of this order, after hearing arguments from both the parties. It is also clarified that the issue shall be decided on its on merits as per law, and without being influenced by any of the observations made in this judgment. 19. Accordingly, the present petition alongwith pending application is disposed of in above terms. 20. A copy of this judgment be forwarded to the learned Sessions Court concerned where the C.A. No. 174/2019, titled as 'Puneet Saluja vs. SBI Global Factors Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
