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TMI Blog2023 (8) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused-Rajni Dhingra and it was agreed that she will pay the whole amount along-with interest @ 24% per annum till 31.03.2014. The accused failed to pay the interest as agreed between the parties regularly and in discharge of her legal liability, accused issued cheque Nos.000032 and 000033 dated 06.02.2017 for an amount of Rs.50,00,000/- each, drawn on Andra Bank, Greater Kailash, New Delhi. On presentation of the cheques for encashment, the same got dishonoured with the remarks "Payment stopped by drawer". 3. Hence, the respondent/ complainant filed a criminal complainant No. RBT 130 on 05.04.2017 and vide order dated 08.04.2022, the accused was convicted under Section 138 NI Act and order dated 11.04.2022 he was sentenced to undergo Simple Imprisonment for a period of nine months. It was also ordered to pay compensation to the tune of Rs.1,50,00,000/- to the complainant and in default thereof, to further undergo imprisonment for a period of one month. 4. Thereafter, the said order was challenged before learned Appellate Court and vide order dated 09.05.2022 the learned Appellate Court while suspending the sentence of the accused, has imposed a condition, to deposit 20% of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Criminal Procedure, 1973(2 of 1974), the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant--- * (a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and * (b) in any other case, upon framing of charge. (2) The interim compensation under sub-section(1) shall not exceed twenty per cent of the amount of the cheque. (3) The interim compensation shall be paid within sixty days from the date of the order under sub-section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque. (4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial years, 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 complainant. (5) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court orders, with Bank rate interest. 12. However, there are certain striking differences between the provisions as contained in these two sections as Section 143-A of the Act gives power to the Trial Court to direct the accused to 'pay' an interim compensation which cannot be more than 20% of the 'cheque amount', at the same time Section 148 of the Act empowers the Appellate Court to direct the accused/appellant to 'deposit' minimum of 20% of 'fine' or 'compensation' awarded by the Trial Court. Hence, whereas the Trial Court cannot award more than 20% of the cheque amount, the Appellate Court is ordained to award not less than 20% of the fine or compensation. Furthermore, under Section 143-A of the Act, the Trial Court is required to order the accused to pay the said amount as interim compensation directly to the complainant. Under Section 148 of the Act, the Appellate Court is required to direct the accused/appellant to 'deposit' the said amount with the Court, which the court may subsequently order disbursal to the complainant/holder of the cheque in due course. 13. As per the provision of Section 148 of the Act, the amount ordered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h by no means can be said to be un-reasonable or arbitrary. 19. Coming back 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 vs. Virender Gandhi"; 2019 (11) SCC 34, has observed that power of Appellate Court directing appellant original accused to deposit more than 20% of fine amount is mandatory in nature. "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., 1973 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. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial court. 4. The Bill seeks to achieve the above objectives." "148. Power to 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 subsection 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 rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in section 148 of the N.I. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient cause shown by the appellant. Therefore, if amended section 148 of the N.I. Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in section 148 of the N.I. Act, but also section 138 of the N.I. Act. Negotiable 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 section 138 of the N.I. Act. 20. The aforesaid judgment in Surender Singh Deswal (supra), the Apex Court after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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