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2022 (5) TMI 701 - HC - Indian LawsDishonor of Cheque - requirement of deposit 20% of the amount of fine or compensation - scope of amendment to section 148 of NI Act - retrospective or prospective - It is submitted that the newly added Sections 148 and 143A of the NI Act came into force on 1st September, 2018, whereas the appeal had been filed on 4th April, 2018, that is, before the said amendment, hence, the matter did not fall in the ambit of the same and the application under Section 148 of the NI Act in itself was not maintainable? - HELD THAT - The language of the provision is silent on the point that at which stage the application under Section 148 of the NI Act can be filed in an appeal against conviction under Section 138 of the NI Act, whether it may be filed at the first instance at the stage of initiation of the proceedings or at any stage during the pendency of appeal, and whether the provision is applicable to the appeals filed prior to the amendment - Keeping in view the objective of the amendment, it is proper to say that to avoid frivolous, unnecessary and unscrupulous litigations and proceedings, the Court concerned may take the required steps to ensure that the appellant has approached the Court with a genuine and real case against the order of conviction and is not wasting the time and resources of the judicial machinery only to delay his conviction and punishment thereof. Such a check on filing of appeals cannot be said to be limited to the cases arising only after the amendment. If it is the intention of the legislature to provide for an effective measure to deal with the menace of unnecessary litigations, then such measure may be intended to be applied to cases where the proceedings under appeal are still underway and have been pending for years. In case of Section 148 of the NI Act, there is no substantive right that is being taken away by the enforcement of the amendment - the argument that Section 148 is not retrospective is rejected. The order passed by the learned ASJ could not have been said to be in excess of power, to the extent of imposition of the fine of 20% of the amount. Whether the condition as imposed by the learned ASJ, that the suspension of sentence will be vacated in case the fine amount is not deposited within the stipulated period, amounted to modification or review of order and hence, impermissible by law? - HELD THAT - Section 362 makes it clear that the bar on alteration of judgment or order is on the judgment or final order and not just any order passed during the pendency of the proceedings, including any interlocutory order. The words used in the provision are while disposing of a case and the bar is hence, only for final orders and judgments that finally decide the fate of the case and dispose it off - The general practice under Section 148 of the NI Act is that the Court concerned while passing the order considering suspension of sentence, imposes the condition of payment of atleast 20% of the fine/compensation amount and if the accused/convict fails to abide by or comply with any condition, as imposed upon him while grating bail and/or suspension of order, the concerned Court may make a finding to the effect of cancelling the bail of the convict/appellant. Nevertheless, the bail or suspension of sentence does not stand automatically cancelled in cases where a fine or compensation has been levied on the appellant under Section 148 of the NI Act and is not deposited by him as per the directions of the Court concerned. It is true that Section 148 of the NI Act does not provide for any sanction or punishment for non-payment of the fine / compensation amount, however, the same is to be decided by the Court concerned in accordance with the facts and circumstances of each case, the sentence in question, the material on record, the likelihood of the appellant to evade the process of justice and such other factors - The learned ASJ passed the order in contradiction to the provision when it granted only a month s time to deposit the payment of 20% of the fine/compensation amount, when Section 148 itself makes provision for a payment within sixty days which may be extended for thirty days but not thereafter. Hence, the impugned order was contrary to law and illegal since the learned ASJ did not honour the period prescribed under the provision. Learned ASJ further, reviewed his order dated 5th April, 2018 while passing the impugned order and he did not have the power to impose such a condition on the petitioners that took away the liberty granted by the same Court, four years before the impugned order. Since, it has been established that the applicability of Section 148 of the NI Act will be extended to appeals arising out of complaint cases that have been filed prior to the amendment, it is found that the learned ASJ was not wrong in adjudicating upon an application under section 148 of the NI Act, at the given stage, and imposing the cost/fine/compensation of 20% of the amount imposed by the learned Trial Court. Hence, to the point of retrospectivity, this Court is satisfied that the contentions and grounds raised on behalf of the petitioners do not stand ground in the peculiar facts and circumstances of this case - it is found that the order passed was impermissible by law and not in accordance with the statute, for the reason that, firstly, the period prescribed for depositing fine awarded under the provision is of sixty days which may be extended for thirty days, yet the learned ASJ only granted a period of one month to the petitioners to deposit 20% of the fine/compensation in favour of the complainant, and secondly, imposing the condition of vacation of suspension of substantive sentence amounted to a review of its own order which is unsustainable by law. Petition allowed.
Issues Involved:
1. Retrospective application of Section 148 of the Negotiable Instruments Act, 1881 (NI Act). 2. Legality of the Additional Sessions Judge's (ASJ) order imposing conditions for suspension of sentence. 3. Whether the ASJ's order amounted to an impermissible review of its earlier order. Issue-wise Detailed Analysis: 1. Retrospective Application of Section 148 of the NI Act: The primary issue was whether the amendment introducing Section 148 of the NI Act, which came into force on 1st September 2018, applies retrospectively. The petitioners contended that the amendment should not apply to appeals filed before the amendment. They relied on various judgments, including Surender Singh Deswal @ Col S.S. Deswal & Ors vs. Virender Gandhi & Anr, and G.J. Raja vs. Tejraj Sharma, arguing that Section 148 should only apply to appeals filed after 1st September 2018. The court referred to the judgment in Surender Singh Deswal (2019), where it was held that Section 148 applies to appeals against convictions under Section 138 of the NI Act, even if the complaints were filed before the amendment. The court also cited the judgment in G.J. Raja, which distinguished between Sections 143A and 148 of the NI Act, noting that Section 148 applies at the appellate stage after a conviction has been made. The court concluded that Section 148 of the NI Act is retrospective in nature and applies to appeals arising from complaints filed before the amendment, provided the appeals were filed after the amendment. This interpretation aligns with the legislative intent to avoid frivolous appeals and ensure speedy disposal of cases under Section 138 of the NI Act. 2. Legality of the ASJ's Order Imposing Conditions for Suspension of Sentence: The petitioners argued that the ASJ's order dated 5th February 2022, directing them to deposit 20% of the fine/compensation amount within one month, was contrary to law. They contended that the ASJ did not have the power to impose such a condition retrospectively, especially when the suspension of sentence was granted in 2018, before the amendment. The court noted that Section 148 of the NI Act provides a period of sixty days for depositing the fine/compensation amount, which may be extended by thirty days. The ASJ's order granting only one month was contrary to the statutory provision. The court also observed that the ASJ's order effectively reviewed and modified its earlier order of suspension of sentence, which is impermissible under Section 362 of the Code of Criminal Procedure (Cr.P.C.). 3. Whether the ASJ's Order Amounted to an Impermissible Review: The court examined whether the ASJ's order amounted to a review of its earlier order. Section 362 of the Cr.P.C. prohibits courts from altering or reviewing their final judgments or orders, except to correct clerical or arithmetical errors. The court found that the ASJ's order, which imposed a condition for the suspension of sentence four years after the initial order, amounted to a review of its earlier order. This was beyond the ASJ's powers and was not permissible by law. Conclusion: The court held that the ASJ's order dated 5th February 2022 was contrary to law and illegal for two reasons: it did not honor the sixty-day period prescribed under Section 148 of the NI Act, and it amounted to an impermissible review of the earlier order of suspension of sentence. Consequently, the impugned order was set aside, and the petition was allowed.
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