2023 (8) TMI 242 - HC - Indian Laws

Dishonour of Cheque - order passed by the Appellate Court suspending the sentence imposed by the trial Court under Section 138 of the Negotiable Instruments Act,1881(NI Act) without making any order for payment of compensation in terms Section 148 of the NI Act - condonation of delay of 118 days in filing the appeal. Condonation of delay - HELD THAT - The cheque was issued by the respondent/accused to the applicant/complainant for an amount of Rs.7,00,000/- which came to be dishonoured. The complaint under Section 138 of the NI Act was preferred before the trial Court. The trial Court directed payment of compensation of Rs.7,00,000/- and in default to suffer simple imprisonment for a period of 7 months. There was a delay of 118 days in preferring the appeal. The Appellate Court, in paragraph 3 of the order dated 22.5.2023 recorded that the cause of the respondent/accused for condoning the delay is supported by the medical certificate which shows that the respondent/accused was advised three months rest from 15.10.2022 to 15.01.2023 - there are no reason to interfere with the view taken by the Appellate Court in condoning the delay of 118 days in preferring the appeal on behalf of the respondent/accused. The Order dated 22.5.2023 is sustained. The learned counsel for the respondent/accused, though initially tried to defend the order dated 9.6.2023, on instructions of the respondent/accused who is personally present in Court, submitted that respondent is willing to deposit 25% of the compensation awarded by the trial Court. Mr. Karpe, on instructions, further submits that such payment of Rs.1,75,000/- shall be directly made over to the applicant. The statement is accepted. It is made clear that such payment is subject to the outcome of the appeal and in case the Appeal succeeds, the amount so deposited shall be refunded by the applicant. The amount to be paid by the respondent to the applicant within a period of 60 days from today. Even the applicant in this application has prayed that respondent be directed to deposit 25% of the compensation awarded by the trial Court. The Revision is partly allowed.

Summary

Issues involved:
1. Challenge to two orders: one suspending the sentence without ordering compensation under Section 138 of the NI Act, and the other condoning the delay in filing the appeal.

Order dated 22.5.2023 - Delay Condoned:
The delay of 118 days in filing the appeal was condoned by the Appellate Court based on medical certificate evidence supporting the respondent's need for rest. The High Court found no reason to interfere with this decision, thereby sustaining the order.

Order dated 9.6.2023 - Payment Pending Appeal:
The High Court acknowledged the power of the Appellate Court under Section 148 of the NI Act to order the appellant to deposit a minimum of 20% of the fine or compensation awarded by the Trial Court. The respondent, willing to deposit 25% of the compensation, agreed to pay Rs. 1,75,000 directly to the applicant, subject to the appeal outcome. The Court accepted this arrangement, directing the payment within 60 days and allowing the Criminal Revision Application with modifications to the impugned order.

Transfer of Criminal Appeal:
The applicant requested the transfer of the Criminal Appeal to a different court for convenience, as both parties resided in different areas. The High Court left this decision to the Principal District Judge, North Goa, expressing confidence in a sympathetic consideration based on merit. The Revision was partly allowed with a directive for expeditious resolution, preferably within six months.