TMI Blog2023 (8) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... id to be un-reasonable or arbitrary. Coming to the question of validity for imposing the restriction to deposit 20% of the amount of compensation as a pre-requisite for suspending the sentence, the Apex Court in the case of SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND OTHERS VERSUS VIRENDER GANDHI [ 2019 (5) TMI 1626 - SUPREME COURT] , has observed that power of Appellate Court directing appellant original accused to deposit more than 20% of fine amount is mandatory in nature. It is also well known to this Court that certain unscrupulous and notorious drawers of the dishonored cheque have been misusing the procedural delay to their advantage after obtaining stay on the proceedings which only frustrates the basic object and reason of incorporation of Section 138 of the Negotiable Instruments Act, 1881. The amendment in Section 148 of the said Act has been cautiously effected primarily having at the back of mind to expedite the disposal of proceedings under the Negotiable Instruments Act and by no stretch of discussion, it could be said that the substantive right of appeal of the accused-appellant has been taken away/or effected. The petitioners-accused are directed to deposit the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. 5. It has been asserted on behalf of the petitioner that the impugned order dated 09.05.2022 whereby, a condition has been imposed upon the petitioner to deposit 20% of the compensation/fine amount, is illegally and arbitrary in law. 6. Mr. Kakkar, vehemently contends that under Section 143-A and Section 148 of the Act, the Courts below do not have a deemed authority to pass such order imposing the liability of payment during the pendency of trial or appeal and further asserted that even otherwise Sections 143-A and 148 of the Act were not in existence, as these were added vide Amendment No. 20 of 2018 in the Act. It is also argued by Mr. Kakkar that order stipulating condition as pre-requisite to deposit 20% of the compensation/like amount within a period of 60 days for suspending the sentence is bad, on account of the fact that appeal against conviction is a statutory right, which is to be heard on merits and if the appeal of the petitioner is likely to succeed in all probabilities wherein the trial Court has committed grave illegality and material irregularity while not appreciating the evidence inasmuch as the complainant has failed to prove his case beyond reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code of Criminal Procedure, 1973(2 of 1974). (6) The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure, 1973 (2 of 1974), shall be reduced by the amount paid or recovered as interim compensation under this section. 148.Power of Appellate Court to order payment pending appeal against conviction-----(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), 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 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. 14. Even further, difference between these two provisions is that under Section 143-A of the Act, the amount of interim compensation awarded by the Trial Court is prescribed to be recovered under Section 421 of Cr.P.C, if not paid within specified time, whereas there is no such corresponding provision in Section 148 of the Act. Section 148 of the Act also does not prescribe any mode of recovery of amount of interim compensation awarded by Appellate Court 15. There is no doubt to the mind of this Court on perusal of the statement of object and reasons for introducing these provisions is to address the issue of undue delay in final resolution of the cheque dishonor cases and to provide interim relief to the holder of the cheque in due course, as well as, to discourage the frivolous and unnecessary litigation; besides strengthening the credibility of the cheques as mode of payment; so as to help the trade and commerce in general and the lending institutions and the banks in particular in extending financial facilities to productive sectors of economy. 16. Reliance placed upon by learned counsel for the petitioner on Vivek Sahni's case (supra) is of no help, as it is not a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1881 (the Act) 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 realize 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 comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant. 8. It is the case on behalf of the appellants that as the criminal complaints against the appellants under section 138 of the N.I. Act were lodged/filed before the amendment Act No. 20/2018 by which section 148 of the N.I. Act came to be amended and therefore amended section 148 of the N.I. 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 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., 1973 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., 1973 when the first appellate cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in section 148 of the N.I. Act would be frustrated. Therefore, as such, no error has been committed by the learned first appellate 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 N.I. Act, as amended. 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 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 us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. It is also well known to this Court that certain unscrupulous and notorious drawers of the dishonored cheque have been misusing the procedural delay to their advantage after obtaining stay on the proceedings which only frustrates the basic object and reason of incorporation of Section 138 of the Negotiable Instruments Act, 1881. The amendment in Section 148 of the said Act has been cautiously effected primarily having at the back of mind to expedite the disposal of proceedings under the Negotiable Instruments Act and by no stretch of discussion, it could be said that the substantive right of appeal of the accused-appellant has been taken away/or effected. 22. Further the Apex Court in Surender Singh Deswal (supra) has observed that amended Section 148 of NI Act, 1881 has purposively interpreted in such a manner it is done so as to provide, inter alia, speedy disposal of cases considering the fact that once after easy filing of the appeals and obtaining stay in the proceedings, injustice creep in to the payee of a dishonored cheque, who is forced to spend considerable time and resources in litigation to realise the value of the cheque resultantly compromise the sanctity of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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