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2021 (9) TMI 378 - HC - Indian LawsDishonor of Cheque - cheque was issued for discharge of a debt or a liability or not - rebuttal of presumption - acquittal of the accused - Section 148 of the Negotiable Instruments Act - HELD THAT - Prima facie it appears that the accused had taken no steps to discharge his liability. The appellate Court, therefore, ought to have insisted on the accused depositing at least 20% of the amount of fine imposed by the Magistrate. Under the circumstances, the respondent No.1 is directed to deposit a sum of ₹ 2,00,000/- before the Sessions Court within sixty days from today. Upon such deposit the amount shall be released in favour of the appellant which release shall be subject to the order that may be passed in terms of proviso to sub-section (3) of Section 148 of the Negotiable Instruments Act if the accused is acquitted by the Sessions Court. The observations made in this order are only prima facie in nature and for the purpose of dealing with the request of the petitioner for depositing the amount under Section 148 of the Negotiable Instruments Act and the Sessions Court shall decide the appeal of the accused unmindful of any of these observations. Such appeal shall be taken up for hearing only after the amount is deposited by the accused as provided in this order. Petition disposed off.
Issues Involved:
1. Challenge to the order of the Sessions Judge regarding the application for depositing 20% of the fine amount under Section 148 of the Negotiable Instruments Act. 2. Delay in moving the application due to nationwide lockdown. 3. Suspension of sentence without notice to the complainant. 4. Interpretation and application of Section 148 of the Negotiable Instruments Act. Issue-wise Detailed Analysis: 1. Challenge to the Order of the Sessions Judge: The petitioner, the original complainant in a cheque bouncing case, challenged an order dated 23.02.2021 by the learned Sessions Judge, North Tripura, Dharmanagar. The order dismissed the petitioner’s application requesting the accused to deposit 20% of the fine amount under Section 148 of the Negotiable Instruments Act. The Sessions Court dismissed the application on the grounds that the appeal was already admitted and partly heard, the court could not review its own order regarding the admission of the appeal, and an order for depositing 20% of the fine amount would amount to a review of the order suspending the sentence. 2. Delay in Moving the Application: The petitioner received notice of the appeal’s admission on 08.03.2020. However, due to the nationwide lockdown starting around 23.03.2020 to curb the spread of coronavirus, the petitioner could not appear before the Sessions Court until 20.08.2020. The application for depositing the amount was then moved on 17.11.2020. The court found that there was no delay on the petitioner’s part in moving the application, considering the lockdown and subsequent partial normalcy. 3. Suspension of Sentence Without Notice to the Complainant: The appeal was admitted ex parte, and the request for suspension of the sentence was granted without notice to the complainant. The court noted that the complainant could not be deprived of the benefit of a statutory provision due to the admission of the appeal and suspension of the sentence without hearing the complainant. 4. Interpretation and Application of Section 148 of the Negotiable Instruments Act: Section 148 of the Negotiable Instruments Act, inserted w.e.f. 01.09.2018, empowers the appellate court to order the appellant to deposit a minimum of 20% of the fine or compensation awarded by the trial court. The Supreme Court in Surinder Singh Deswal v. Virender Gandhi emphasized that the word “may” in Section 148 should generally be construed as “shall,” and not directing the deposit should be an exception with special reasons assigned. The court held that the appellate court should have directed the accused to deposit at least 20% of the fine amount, as the accused had not rebutted the presumption that the cheque was issued for discharge of a debt or liability. Conclusion: The High Court found that the Sessions Judge committed a serious error in rejecting the application for depositing 20% of the fine amount. The appellate court should have issued such a direction even without the petitioner moving an application. The respondent No.1 (accused) was directed to deposit ?2,00,000/- before the Sessions Court within sixty days, which would be released in favor of the appellant (complainant), subject to the final order in the appeal. The appeal would be taken up for hearing only after the amount is deposited. Final Order: The petition was disposed of with the direction for the accused to deposit ?2,00,000/- within sixty days. The observations made were prima facie and for the purpose of dealing with the request under Section 148 of the Negotiable Instruments Act. The Sessions Court was instructed to decide the appeal unmindful of these observations and only after the deposit was made. Pending applications, if any, were also disposed of.
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