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TMI Blog2025 (3) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 08.07.2024 in Ct. Cas. No. 2196/2020 and Ct. Cas. No.2197/2020 passed by the learned Metropolitan Magistrate, Rohini Courts, Delhi ["learned MM"], under Section 138 of the Negotiable Instruments Act, 1881 ["NI Act"]. 2. Pithily put, the disputes inter se petitioner and respondent(s) emanate from two financial transactions between them, however, since the factual assertions and the case of the parties, including the legal issues arising therein are the same and Ms. Sumitra Mittal, the respondent in Crl. M.C. 1327/2025 is the mother of Mr. Rajesh Mittal, the respondent in Crl. M.C. 1341/2025 ["respondents"], both the petitions have been taken up together and being dealt with vide this common judgment. 3. As per the petitioner, he is engaged in real estate business and being acquainted with both respondents in the past, he had taken loans from Mr. Rajesh Mittal from time to time and repaid them within the stipulated time as well. Once both respondents allegedly collectively advanced monetary loan of Rs. 53,00,000/- to the petitioner since, he had incurred losses in his business and also wanted to get his sister married. Against payment thereof, the petitioner issued two post-dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner seeks to challenge the said impugned order(s) dated 27.01.2025 by way of the present two petitions before this Court. 9. Learned counsel for the petitioner, Dr. Amit George, has primarily argued that the learned ASJ has erred in treating the condition of 20% deposit of the compensation amount under Section 148 of the NI Act as an absolute and mandatory requirement, even though the same actually is a discretion to be exercised by the appellate Court and depends upon the specific circumstances of each case. 10. As per Dr. Amit George, in both appeals, the learned ASJ has wrongly presumed the financial capacity of the petitioner by erroneously attributing ownership of a saree business to him, even though the actual owner of the business was Ms. Sumitra Mittal, the respondent in Crl. M.C. 1327/2025. This, in itself has led to a wrongful assessment of the ability of the petitioner to pay and has caused grave injustice to him. Thereafter, relying upon Jamboo Bhandari (supra), Rakesh Ranjan Shrivastava vs. State of Jharkhand & Anr. (2024) 4 SCC 419, C.R. Balasubramanian vs. P. Eswaramoorthi 2024:MHC:322, Baiju vs. State of Kerala 2023 SCC OnLine Ker 10204, Dr. Amit George, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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." [Emphasis supplied] 16. Thus, what entails from the above is that in an appeal filed before the appellate Court (like the learned ASJ herein), though Section 148 of the NI Act has been incorporated with an aim to prioritize the speedy disposal of the whole machinery involved in complaints involving cheque bouncing cases as well as to curb the dilatory tactics exercised by a party who has already been pronounced as "guilty" by virtue of a final judgment passed by the learned MM in an already adjudicated proceedings under Section 138 of the NI Act as also for safeguarding the interests of the original complainant, however, at the same time, it also gave a leeway to such "guilty" person/ entity for proceeding with the appeal, albeit, subject to a minimum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, while dealing with a similar issue of deposit of 20% of the fine or compensation awarded by the learned MM in Section 148 of the NI Act, in Surinder Singh Deswal @ Colonel S.S. Deswal & Ors. vs. Virender Gandhi (2019) 11 SCC 341 held as under:- "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 "rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Section 148. However, in a case where the appellate court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded." 22. This Court also find that a learned Single Judge of the Kerala High Court in Baiju (supra), while dealing with Section 148 of the NI Act and similar circumstances involved has also held as under:- "7. In the above Section, it is clearly stated that 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. There are two limbs in Section 148 (1) of the Negotiable Instruments Act. First, the appellate court has to decide, whether to order the appellant to deposit the fine or compensation awarded by the trial court. The second limb is that, once it is decided to order deposit of fine or compensation, a minimum of twenty percent of the fine or compensation is to be ordered to deposited. Therefore, the duty of the appellate court is firstly to decide whether such a deposit is to be ordered. As observed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration the various factors (paragraph 19 hereinabove). 25. As per the facts involved herein, on the first day of listing of the two appeals filed by the petitioner on 07.08.2024, the learned ASJ passed the following order:- "... ...The impugned order of sentence dated 08.07.2024 stands suspended till the disposal of the present review petition and appellant is admitted to bail on his furnishing personal bond and surety bond in the sum of Rs.50,000/- to the satisfaction of the concerned Ld. JMFC/Ld. Link JMFC. The appellant is also directed to deposit 20% of the compensation amount within 60 days from today in the form of FDR in the name of this court... ..." 26. On the next date, i.e. 23.09.2024, since the petitioner had not complied with the earlier order, the learned ASJ passed the following order in both the appeals:- "... ...Appellant is directed to deposit 20% of the compensation amount, in compliance of previous order dated 07.08.2024 on or before NDOH." 27. Without challenging any of the aforesaid earlier orders dated 07.08.2024 and 23.09.2024, the petitioner instead filed an application seeking waiver of deposition of 20% of the compensation amount in both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as also the other contentions raised by the learned counsel for the respondent(s) need not be gone into by this Court. Likewise, the contention of the learned counsel for respondent(s) herein that the petitioner had acquiesced with either of those two earlier orders dated 07.08.2024 and 23.09.2024 passed in the very same two appeals by the very same learned ASJ is of no significance. Therefore, in such a scenario wherein the reasonings given by the learned ASJ in the impugned orders are in question, the present petitions challenging them are per se maintainable. 30. Significantly, this leaves this Court to consider if in view of the above interpretation to the provision of Section 148 of the NI Act as also taking note of the judicial precedents by the Hon'ble Supreme Court in both Surinder Singh Deswal (supra) and Jamboo Bhandari (supra), are the reasons given by the learned ASJ in the two impugned orders sufficient to sustain. 31. A perusal of both the impugned orders passed by the learned ASJ reveal that they are premised "Keeping in view of the presumptions laid down in Negotiable Instruments Act, prima facie case is clearly made out in favour of respondent/ complainant... . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exception for waiver of depositing 20% of the fine or compensation awarded by the learned MM before it as also the aforesaid factors considered by the learned ASJ and the reasons spelt out therein, and instead calling upon the petitioner to deposit 20% of the compensation amount as awarded by the learned MM in the two impugned orders, are insufficient. 35. Resultantly, the impugned orders both dated 27.01.2025 passed by the learned ASJ are set aside and the applications in each of the appeals being C.A. No.139/2024 entitled Anuj Ahuja vs Sumitra Mittal as also C.A. No.138/2024 entitled Anuj Ahuja vs. Rajesh Mittal are remanded for their fresh consideration by the learned ASJ in terms of the established position of law. 36. Needless to mention, it is also clarified that the earlier orders dated 07.08.2024 and 23.09.2024 shall not be given effect to by the learned ASJ till the disposal of the aforesaid two application(s) of the petitioner, seeking waiver of deposit of 20% of the compensation amount to suspend the order(s) of sentence both dated 08.07.2024 in Ct. Cas. No.2196/2020 and Ct. Cas. No.2197/2020 passed by the learned MM, afresh. 37. Accordingly, the present petitions ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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