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TMI Blog2019 (3) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... ice to the complainant at the same time cannot be shadowed. The appellate Court hence to strike balance of these two circumstances by adopting a reasonable view. The provision of section 148 is in consonance with the power vested with the appellate Court which can impose some conditions at the time of granting bail or at the time of admission of appeal. However, the right to appeal and his liberty cannot be taken away but to be protected by applying the principle of reasonability while imposing conditions. The condition imposed at the time of pending appeal of the payment of the amount of compensation should not curtail the liberty of the appellant/accused. Such condition if not fulfilled, then, amount is recoverable finally, if the conviction is maintained. The amount can be recoverable with interest. If conviction is confirmed, the order of a higher rate of interest or commercial rate of interest, may be passed; or in default maximum sentence may be imposed. Moreover, the fine or compensation is made recoverable as per the provision of section 421 of Code of Criminal Procedure - In the present case, the impugned orders are passed on 3.8.2018 by the learned Magistrate and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict has a right to appeal. Due to imposition of such condition, his right to appeal and bail is taken away. The right to bail should be unconditional. He submitted the provisions of sections 143A and 148 which are enacted on 12.8.2018 and which came into effect from 1.9.2018 are ultra vires to the Article 21 of the Constitution of India. He submitted that when the offence in this matter was committed and the complaint was filed, at that time, these two provisions were not in existence. This being a substantive law, the said provisions cannot be applied retrospectively. He submitted that if the convict has no capacity to pay, then, he is bound to lose his right to an appeal because of such condition of payment of 20% of the amount of the compensation. He has good case on merits, so, imposing such condition is unjust and against the principles of Criminal Jurisprudence of and of Article 21 of the Constitution of India. 5. In support of his submissions, on the point of retrospective effect, he relied on the judgment in the case of Anil Kumar Goel vs. Kishan Chand Kaura (20076) 13 SCC 492. The learned Counsel also relied on the case of Dilip S. Dahanukar vs. Kotak Mahindra Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Power of Appellate Court to order payment pending appeal against conviction. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court: Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143-A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal: Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s can be applied only to those complaints which are filed after 1.9.2018 or the complaints or appeals which are already pending wherein the Courts can pass the orders only after 1.9.2018. 11. In the case of Anil Kumar Goel vs. Kishan Chand Kaura, (supra), the applicant had filed application before the trial Court for discharge from section 138 of the Negotiable Instruments Act. Section 5 of the General Clauses Act states that the day of the operation of any Act shall commence when the assent of the President is received. In the case of Anil Kumar Goel (supra), the Supreme Court has relied on the ratio laid down in the case of Punjab Tin Supply Co. vs. Central Govt. (1984) 1 SCC 206 the Supreme Court held that 17. All laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the accused to deposit the amount which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. It is further stated in section 148 that the amount payable under this subsection shall be in addition to any interim compensation paid by the appellant under section 143A. 14. The Legislature has also taken care of the accused if at all he is not held guilty and acquitted either at the trial or in the appeal. The subsection (4) of section 143A and the proviso to section 148 state about the repayment of the amount by the complainant to the accused. In the event of acquittal, the said amount also to be paid within 60 days from the date of the order. The submissions of Mr. Jha that it is to be made prospectively applicable to the cases only which are filed after 1.9.2018 is not sustainable. 15. It is useful to compare the two sections i.e., 143-A and 148 of the Negotiable Instruments Act in a tabular format to get a quick grasp. The grant of interim relief is a common thread running through both the sections. However, they are not identical. The terms and clauses used by the Legislature while drafting these two sections, provide internal aid to underst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l if the accused is found guilty. However, the said stage is preponed by enacting section 143A(4) and proviso to section 148 of the Act enabling Courts to grant compensation on condition as mentioned therein. Both the sections start with non-obstante clauses giving overriding effect to Criminal Code. 17. Mr.Jha has challenged the order mainly on the ground that in the event of failure in payment of fine or compensation, the bail would be cancelled. Whether such condition depriving the accused of his liberty can be imposed under section 143A or 148 of the Negotiable Instruments Act is the issue raised by Mr.Jha. This issue can be answered on the background of the discussion above and on the basis of the ratio laid down by the Supreme Court in the case of Anil Kumar Goel (supra) and Dilip S. Dahanukar (supra). Right to appeal is a statutory right and it protects the liberty of the convicted accused and provided further forum to agitate the issue of the liberty of the accused. The right to appeal is considered a fundamental right under Article 21 of the Constitution of India. 18. In the landmark case of Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd. anr. (supra), the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the date of the order under subsection (1). However, subsection (1) of section 143A states that the Court may order the drawer to pay interim compensation. So, it leaves discretion to the trial Court to pass such order of interim compensation and if such interim direction is given, the ceiling limit under section subsection (2) of 20% of the cheque amount is prescribed. The period of payment is 60 days and can be extended for a further period of 30 days. Subsection (4) is about return of the amount of compensation in the event of acquittal. Subsection (5) of section 143A refers to section 421 of the Code of Criminal Procedure. It states that the interim compensation payable under this section may be recovered as if it is a fine under section 421 of the Code of Criminal Procedure. Thus, for the purpose of recovery, this interim compensation takes a colour of fine. 20. Section 421 reads as under: 421. Warrant for levy of fine. (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Procedure and amount of fine is recoverable by following procedure under section 421 of the Code. The Section is worded as appellate Court may order . Thus, it gives discretion to the appellate Court to invoke its discretionary power under section 148 while directing to deposit 20% of the amount of fine or compensation. In this clause, both the words may and shall are present. The words in section 148 the appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent. Hence, by literal meaning of this sentence; discretion is given to the appellate Court to direct the appellant to deposit the sum but if at all such direction is given, that sum should not be less than 20% of the amount of fine or compensation awarded by the trial Court. Thus, the court has discretion and it may not pass the order but if the order is passed, then, the minimum amount payable should be 20% of the fine or compensation. 22. The grievance is made by Mr.Jha that if the accused has no capacity to pay the amount under section 148 pending appeal, then, the accused should not be deprived of his right to appeal or his right to be on bail. It is true an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not suffer imprisonment only because the conditions imposed for suspending the sentence are harsh. 69. We are of the opinion that having regard to the aforementioned factors the amount of compensation not only must be reasonable one, the conditions for suspending the sentence should also be reasonable. It is only with that intent in view, the doctrine of purposive construction should be applied. 70. We would, however, like to put a note of caution that the right of an accused unnecessarily need not be enlarged but it is the court's duty to duly protect his right. 71. We are prima facie of the opinion (without going into the merit of the appeal) that the direction of the learned trial Judge appears to be somewhat unreasonable. The appellant herein has been sentenced to imprisonment. Only fine has been imposed on the Company. Thus, for all intent and purpose, the learned trial Judge has invoked both subsections (1) and (3) of Section 357 of the Code. The liability of the appellant herein was a vicarious one in terms of Section 141 of the Negotiable Instruments Act. The question may also have to be considered from the angle that the learned trial Judge thought it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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