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2021 (1) TMI 31 - HC - Indian LawsDishonor of Cheque - Section 138 of Negotiable Instruments Act, 1881 - whether a direction for deposit of a part compensation before the Appellate Court is a discretion or as to whether it is in the nature of a mandate, the provisions of the Section 148 of the Act (as amended in the year 2018) need to be borne in mind? - HELD THAT - Section 374 Cr.P.C. does not prescribe any condition for admission of an appeal. In other words, the provisions of the statute which vests a convict with a valuable right to challenge his conviction are not circumscribed by any conditions. Nor does any provision of the Negotiable Instruments Act, 1881 refer to any pre-condition for availing a valuable right of first appeal. Section 148 of the Act just vests the Appellate Court with the power to direct the appellant to deposit an amount not less than 20% of the compensation amount but under no circumstances the same can be interpreted to be a condition pre-requisite for availing the right of appeal. Imposition of any condition at the time of suspending of sentence may be a different matter and the trial Court may in its wisdom, impose such a condition failing which the order suspending sentence may be vacated. In other words, his bail during the pendency of appeal may be cancelled upon failure of the appellant to comply with the direction of deposit of such amount as may have been directed by the Appellate Court. The right to appeal against conviction is an invaluable statutory right vested upon a convict by Cr.P.C. which cannot be allowed to be defeated by imposing any condition for availing such right. In fact, while giving a wider connotation to Article 21 of Constitution of India, it can even be said that depriving a convict of his right to appeal by imposing any pre-requisite for availing his statutory right to challenge conviction in a higher Court would amount to depriving his liberty without adhering to the established procedure of law - Even though the Negotiable Instruments Act, 1881 is a special Act and could override provisions of Cr.P.C., but there is no such specific provision in the Act which could be interpreted to mean that availing of right to appeal by a person convicted for an offence under the Act, has been made subject to some conditions. The submission, thus, made in this regard on behalf of the petitioner carries weight and deserves to be accepted. The condition made in the impugned orders wherein the admission of appeal has been made subject to deposit of 20% of the compensation amount is set aside and it is ordered that the appeals shall stand admitted before the lower Appellate Court. The petitioners are, however, directed to deposit an amount equivalent to 20% of the amount of compensation awarded by the trial Court within 60 days from today - In case the aforesaid amount is deposited within 60 days from today, the bail already granted vide order dated 28.2.2020 by lower Appellate Court shall continue subject to any such fresh conditions as may be imposed by lower Appellate Court. Petition accepted.
Issues Involved:
1. Discretionary nature of Section 148 of the Negotiable Instruments Act. 2. Time period for depositing compensation under Section 148. 3. Conditions imposed on the right to appeal under Section 374 of Cr.P.C. Issue-wise Detailed Analysis: Issue 1: Discretionary Nature of Section 148 of the Negotiable Instruments Act The petitioners challenged the direction to deposit 20% of the compensation amount, arguing that such a direction under Section 148 of the Negotiable Instruments Act is discretionary and should consider the financial position of the accused. The court examined the language of Section 148, which states that the appellate court "may" order the appellant to deposit a minimum of 20% of the fine or compensation. However, the court referred to the Supreme Court's interpretation in Surinder Singh Deswal vs. Virender Gandhi (2019)11 SCC 341, which held that this provision is generally to be construed as a "rule" rather than an exception, making it more of a mandate. The court concluded that the lower appellate court's direction to deposit the amount was justified as there were no exceptional circumstances to deviate from this rule. Issue 2: Time Period for Depositing Compensation Under Section 148 The petitioners contended that the impugned order, which provided only one month for depositing the compensation amount, was contrary to Section 148(2) of the Act. This section mandates a period of 60 days, extendable by another 30 days, for depositing the amount. The court agreed with the petitioners, noting that the lower appellate court's order granting only one month was indeed contrary to the statutory provision. This error was acknowledged and needed rectification. Issue 3: Conditions Imposed on the Right to Appeal Under Section 374 of Cr.P.C. The petitioners argued that imposing a condition to deposit 20% of the compensation amount at the time of admitting an appeal against conviction under Section 374 of Cr.P.C. was unreasonable and violated their right to appeal. The court examined Sections 372 and 374 of Cr.P.C., which do not prescribe any conditions for the admission of an appeal. The court emphasized that the right to appeal is a valuable statutory right and cannot be defeated by imposing preconditions. The court also referenced Supreme Court judgments, including Babu Rajirao Shinde v. The State of Maharashtra (1971)3 SCC 337 and Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd (2007)6 SCC 528, which underscored that the right to appeal cannot be subjected to any conditions. The court concluded that the condition imposed by the lower appellate court was invalid and set it aside. Conclusion: 1. The condition in the impugned orders requiring the deposit of 20% of the compensation amount for admitting the appeal was set aside. The appeals were ordered to stand admitted before the lower appellate court. 2. The petitioners were directed to deposit 20% of the compensation amount within 60 days from the date of the judgment. 3. If the amount is deposited within the stipulated time, the bail granted by the lower appellate court would continue, subject to any fresh conditions imposed by the lower appellate court. 4. If the petitioners fail to deposit the amount within 60 days, the lower appellate court may cancel the bail and proceed to hear the appeal on merits. 5. The petitions were accepted accordingly.
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