2021 (1) TMI 626 - HC - Indian Laws

Maintainability of petition - right to prefer an appeal - condonation of delay application under Section 5 of the Limitation Act - Dishonor of cheque - Section 148 of the Negotiable Instruments Act - HELD THAT - As per section 148 of NI Act A minimum of 20% of the compensation amount may be directed to be paid at the time of hearing of the appeal. Thus fixing 50% of the compensation amount as a pre-condition for hearing of the application and the appeal was not an absolute imperative. It has to be remembered that the right of appeal of a convict is too precious to be thwarted by technical embargoes that too discretionary ones. As such so far as the direction to pay 50% of the compensation amount is concerned the same ought to be suitably modified. In the present case during pendency of this revision the Learned Appellate Court has proceeded with the matter and dismissed the appeal and the application of the present petitioner on the technical ground that 50% of the compensation amount could not be paid by him. It is true that in the absence of a stay it is open to a Learned Appellate Court to proceed with the matter. However every discretion has to be exercised judiciously. Furthermore it is also true that the delay in disposing of a matter does not depend merely on a litigant who prefers an application. Sometimes there are systematic delays. Sometimes there are other factors which come into play like the onset of a pandemic as in the present case. Without going into the petitioner s role in protracting a proceeding he cannot be penalised for the purported delay. It shall be just and proper if the petitioner is directed to deposit 25% of the compensation amount in terms of Section 148 of the Negotiable Instruments Act - The impugned order are set aside the application for condonation of delay and the appeal are restored to their original file and number before the Learned Appellate Court the matter is remanded back to the Learned Appellate Court so that the application and the appeal can be decided afresh - Petition allowed by way of remand.

Summary

Issues:
Challenge to order directing payment of 50% compensation amount for hearing of appeal under Section 5 of Limitation Act.

Analysis:
The revision application contested an order directing the appellant to pay 50% of the compensation amount for the appeal's hearing. The initial conviction under Section 138 of the Negotiable Instruments Act involved dishonored cheques. The appellant appealed against the conviction but faced the requirement to pay 50% of the compensation amount for the appeal's hearing, leading to the revision application.

The appellant argued financial constraints and the impact of the Covid-19 pandemic on his ability to pay the specified amount. The appellant emphasized the importance of his right to appeal and sought a more lenient payment condition. The court considered the retrospective operation of Section 148 of the Negotiable Instruments Act, which mandates a minimum deposit of 20% of the compensation amount for appeals against conviction under Section 138.

The court acknowledged the significance of the appellant's right to appeal and the need to avoid technical barriers. It noted that the directive to pay 50% of the compensation amount was not absolute and could be modified. The court highlighted the need for judicious exercise of discretion, especially considering external factors like the pandemic and systematic delays.

In light of these considerations, the court directed the appellant to deposit 25% of the compensation amount as per Section 148 of the Negotiable Instruments Act. The court also addressed the subsequent dismissal of the appellant's appeal due to non-payment, emphasizing the need to set aside consequent orders when the original order is overturned.

The court invoked inherent powers under Section 482 of the Code to rectify the situation, ensuring justice and setting aside the impugned orders. Consequently, the court set aside the orders directing payment, restored the appeal and application to their original status, and remanded the matter back to the Appellate Court for a fresh decision.

In conclusion, the revisional application and connected application were disposed of, with the court emphasizing the importance of delivering certified copies of the judgment to the respective advocates promptly.