2019 (3) TMI 1081 - HC - Indian Laws

Dishonor of cheque - Dishonest person - Direction to deposit amount of the compensation as a condition precedent to maintain the order of the bail or to entertain the appeal preferred by the petitioner in the Sessions Court - Sections 143A and 148 of the Negotiable Instruments Act - whether the provisions can be applied only to those complaints which are filed after 1.9.2018 or the complaints or appeals which are already pending wherein the Courts can pass the orders only after 1.9.2018? Held that - Right to appeal is a statutory right and it protects the liberty of the convicted accused and provided further forum to agitate the issue of the liberty of the accused. The right to appeal is considered a fundamental right under Article 21 of the Constitution of India. The criminal Courts have powers to impose various conditions at the time of granting bail, in the trial and also at the appellate stage. In appeal, the accused is not innocent but he is held guilty by the first Court. Thus, though his liberty is to be protected, simultaneously, the Court s powers to do justice to the complainant at the same time cannot be shadowed. The appellate Court hence to strike balance of these two circumstances by adopting a reasonable view. The provision of section 148 is in consonance with the power vested with the appellate Court which can impose some conditions at the time of granting bail or at the time of admission of appeal. However, the right to appeal and his liberty cannot be taken away but to be protected by applying the principle of reasonability while imposing conditions. The condition imposed at the time of pending appeal of the payment of the amount of compensation should not curtail the liberty of the appellant/accused. Such condition if not fulfilled, then, amount is recoverable finally, if the conviction is maintained. The amount can be recoverable with interest. If conviction is confirmed, the order of a higher rate of interest or commercial rate of interest, may be passed; or in default maximum sentence may be imposed. Moreover, the fine or compensation is made recoverable as per the provision of section 421 of Code of Criminal Procedure - In the present case, the impugned orders are passed on 3.8.2018 by the learned Magistrate and the amendment came into force on 1.9.2018. Obviously, in the order dated 3.8.2018, section 148 is not mentioned by the learned Additional Sessions Judge. He did not intend to pass the order under section 148 but it is to be understood that the learned Sessions Judge passed the order under Code of Criminal Procedure by using the powers of the criminal Court to impose putting condition at the time of granting bail. Such a condition of bail can be imposed or it can be modified for non-compliance of the condition in view of the nature of the offence and the circumstances. The orders dated 24.9.2018 imposing a condition that the accused to deposit 25% amount out of total compensation, are modified that the petitioner/accused is directed to deposit 20% of the total amount of the compensation - petition allowed in part.

Summary

Issues Involved:

1. Legality and validity of the orders directing the petitioner to deposit 25% of the compensation amount as a condition for bail or to entertain the appeal.
2. Retrospective application of Sections 143A and 148 of the Negotiable Instruments Act.
3. Right to appeal and bail under Article 21 of the Constitution of India.
4. Conditions imposed on bail and their impact on the liberty of the accused.

Detailed Analysis:

1. Legality and Validity of the Orders:
The petitioner challenged the orders dated 3.8.2018, which directed the petitioner to deposit 25% of the compensation amount as a condition for bail or to entertain the appeal. The appellate court had directed the accused to deposit 25% of the total compensation, failing which the suspension of the sentence would be vacated. The petitioner argued that this condition deprived him of his right to appeal and bail, which should be unconditional.

2. Retrospective Application of Sections 143A and 148:
The petitioner contended that Sections 143A and 148, which were enacted on 12.8.2018 and came into effect from 1.9.2018, could not be applied retrospectively to cases where the offense was committed, and the complaint was filed before these provisions came into existence. The petitioner relied on the judgment in Anil Kumar Goel vs. Kishan Chand Kaura, which held that laws affecting substantive rights generally operate prospectively unless the legislative intent is clear and compelling.

The court, however, held that the provisions could be applied to cases pending in trial and appellate courts after 1.9.2018. It was stated that the Legislature introduced these amendments to address undue delays in cheque dishonor cases and to provide timely relief to payees, thus strengthening the credibility of cheques and aiding trade and commerce.

3. Right to Appeal and Bail under Article 21:
The petitioner argued that the right to appeal is a statutory right and a fundamental right under Article 21 of the Constitution of India. The imposition of conditions that could lead to the cancellation of bail or suspension of the sentence if the compensation was not paid was contended to be unjust and against the principles of criminal jurisprudence.

The court referred to the landmark case of Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd. & anr., where it was held that the right to appeal is a substantive right and cannot be interfered with or impaired by imposing unreasonable conditions. The Supreme Court emphasized that the right of an accused should be protected, and any conditions imposed should be reasonable and not harsh.

4. Conditions Imposed on Bail and Their Impact on the Liberty of the Accused:
The court analyzed Sections 143A and 148 of the Negotiable Instruments Act, comparing the provisions for interim compensation during trial and the appellate stage. It was noted that Section 143A allows for interim compensation not exceeding 20% of the cheque amount, while Section 148 allows the appellate court to order the appellant to deposit a minimum of 20% of the fine or compensation awarded by the trial court.

The court held that imposing a condition of cancellation of bail or suspension of the sentence for non-payment of compensation was unjust and illegal. It was emphasized that the accused's liberty should not be curtailed by such conditions, and the amount of compensation should be recoverable through the procedures laid down under Section 421 of the Code of Criminal Procedure.

Conclusion:
The court modified the orders dated 24.9.2018, directing the petitioner to deposit 20% of the total compensation amount within 90 days, extending the stipulated time due to ongoing litigation. It was further ordered that if the amount was not deposited within 90 days, the petitioner would have to pay interest at the rate of 18% from the date of the order, if the conviction was maintained. The conditions of cancellation of bail or suspension of the sentence in the event of non-payment were set aside, and the writ petitions were partly allowed and disposed of accordingly.