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TMI Blog2021 (6) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... posed, therefore, considering the financial crunch that the accused will have to face in this trying time, the Court deems it fit to directed the accused to deposit 20% of compensation instead directing to deposit 20% of the fine imposed. The Court has also taken into consideration the submission made on behalf of the accused regarding financial inability to arrange for such huge deposits in these Appeals. Considering the overall fact situation, where the accused person is ordered to pay fine of ₹ 1,80,00,000/- in one of the 9 complaints and similar amount ordered to be paid as fine over and above this, an amount of ₹ 1,50,00,000/- Awarded as compensation under Section 357 of the Criminal Procedure Code and what has been brought on the record of this case regarding decree issued by the Commercial Court in Commercial Civil Suit No. 43 of 2919 dated 09.12.2020 holding the plaintiff Company to entitle to recover ₹ 4,50,25,000/- with accrued rate of interest at the rate of 6% from 26.10.2012 till realization of the full amount, in the facts of this case, the Court does not deem it fit to enhance the amount of deposit to more than 20% of the compensation Awarded and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Sessions Judge, Vadodara in Criminal Appeal No. 133 of 2020. C) Pending admission, final hearing and disposal of this Application, Your Lordships be pleased to stay implementation and operation of Condition Nos. 3 and 4 imposed while passing an order dated 01.10.2020 below Exh. 4 by the learned 2nd Additional District Sessions Judge, Vadodara in Criminal Appeal No. 133 of 2020. 4.1. In the Application filed by the original Complainant being Criminal Misc.Application No. 19499 of 2020, the prayer is as under :- (b) To modify the order dated 01.10.2020 passed below Exhibit No. 4 by the Ld. 2Nd Addl. District and Sessions Judge, Vadodara in Criminal Appeal No. 139 of 2020 and to Suitably enhance the amount to be deposited by the Respondent Nos. 2 and 3 - original accused, as a percentage of fine or compensation Awarded by the Trial Court; 5. The facts which are not in dispute are that Pratham Reality Pvt. Ltd. is the Complainant who has filed Criminal Case No. 48441 of 2011 (old case No. 4865 of 2011) under Section 138 of the Negotiable Instruments Act ( the Act for short) against M/s. Kalapi Developers and the proprietor of M/s. Kalapi Developers. After due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to be imposed keeping in view the Special Facts of the case which include Civil Litigation in the form of Summary Suit before the Commercial Court, which is also challenged before this Court. The other ground is financial difficulties in the present time of Covid Pandemic Situation. 7.1. While on the other hand, the original Complainant has challenged the very Clause contending the same to be against the very Provision of Law for imposing condition by referring to Section 148(3) of the Act. 8. Learned Senior Advocate for the Applicants-accused in Criminal Misc.Application No. 18334 of 2020 and group matters at the outset submitted that the Applicant is facing trying time in view of the present situation of pandemic which has affected the business and it would be virtually impossible for the Applicant to deposit such a huge amount and therefore, condition imposed is to harsh and therefore, requests that the same be deleted. It is submitted that by recording conviction of the Applicant, the trial Court was pleased to impose fine of ₹ 1,80,00,000/- and it is now ordered to pay an amount of ₹ 1,50,00,000/- towards compensation as provided under Section 357 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven except the transactions mentioned in the complaint filed by the original Complainant, there are other transactions from the back of the original Complainant herein to the Bank of the Applicants herein, which falsify the story put forward by the original Complainant herein and the said fact is also reflected in the Bank Statement of the Applicants-accused. It is, therefore, submitted that from the very beginning, the modus operandi of the original Complainant herein was to cheat the Applicants and pocket entire amount and did not want to give any: amount as agreed between the parties, wherein he had succeeded. Even during trial also, the Authorized person of the Company has been examined, whereas the Director of the Company viz., Jayant Sanghavi was never summoned for giving his version. It is further submitted that as per the Company Law, one Company can give loan to another Company, however, not to any individual person and in the facts of the present case, it is clear that the Company of the Original Complainant had given loan to the individual i.e. the Applicants herein, however, the said aspect has not been properly considered by the learned Courts below, which adversely af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually the arguments of the learned Advocate for the Applicants in Special Civil Application No. 8894 of 2013 have been deviously portrayed as the observations of this Court only with a view to create a false merit in the captioned Application. I also say and submit the Parameters to determine a conditional leave to defend in a Summary Suit before a Trial Court are different and do not have a bearing on the parameters that would determine the ingredients of offence under Section 138 of the Ni Act. At the time of the hearing of the Special Civil Application No. 8894 of 2013, the evidence pertaining to the Criminal case preferred by the Respondent No. 2 under Section 138 of the NI Act had not come on record and also the same had not been appreciated by the Ld. Trial Court thereby, making the observations of the Ld. Magistrate in the order dated 12.03.2020 convicting the Applicants herein independent of the summary Suit initiated against the Applicants before the Ld. Trial Court. That further the observations by this Hon'ble Court are at an interim and preliminary stage. The deponent submits that in fact telling the judgment in the summary Suit has been pronounced on 09.12.2020 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 138 of the Act in the facts of this case with due regard to other litigation in the form of Summary Suit and the arguments advanced in this regard. The Court does not deem it fit to enter into it on merits as the main Appeals are still pending before the Appellate Court which will, in due course, have to examine such contentions raised and answered by the respective parties. 11. It is also pertinent to observe that even in the summary Proceedings, the Commercial Court has allowed the Application of the Complainant, which is reportedly subject matter of challenge in a separate Proceeding before this Court and hence also, this Court refrains from entering into the issue of the findings, if any, given in favour of any of the parties while dealing with Summary Suit Proceedings by the Commercial Court. 12. For the purpose these Applications, what is relevant is Application of Section 148 of the Act, which reads as under :- 148. Power of Appellate Court to order payment pending Appeal against conviction. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an Appeal by the drawer against conviction under Section 138, the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng offence under Section 138 of the Act. Being aggrieved and dissatisfied by the order and judgment dated 12.03.2020 passed by the 14th Additional chief Judicial Magistrate in Criminal Case No. 48441 of 2011, the Respondent Nos. 2 and 3 preferred an Appeal being Criminal Appeal No. 133 of 2020 before the learned Sessions Court along with an Application for suspension of sentence below Exh. 4. The Sessions Court passed the order dated 01.10.2020 below Exh. 4 in Criminal Appeal No. 133 of 2020 for suspension of sentence (herein after referred to as impugned order ), whereby the said learned Court was pleased to allow the Application and suspended the sentence passed by the learned Trial Court by imposing certain conditions amongst which condition Nos. 2, 3 and 4 are reproduced herein under :- 2. Order passed by the learned Trial Court in Criminal Case No. 48441 of 2011 (Old CC No. 4865/2011) dated 12.03.2020 is hereby suspended till final disposal of Appeal on submissions of surety bond of ₹ 25,000/- and personal bond of like amount. 3. The Applicants are directed to deposit 20% amount of the disputed Cheque before the Nazir of this Court. 4. The Applicants are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary Trial or a Summons Case, where he pleads not guilty to the accusation made in the complaint; and in any other case, upon framing of charge. The interim compensation so payable shall be such sum not exceeding twenty per cent of the amount of the Cheque; and (ii) to insert a new Section 148 in the said Act so as to provide that 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. 4. The Bill seeks to achieve the above objectives. 15. The Apex Court in case of Surinder Singh Deswal alias Colonel S.S. Deswal Ors. Vs. Virender Gandhi, reported in (2019) 11 SCC, 341 has given meaning to Section 148 to be in furtherance of the objects and reasons of the Amendment Act and has proceeded to hold as under :- 7.1 Having observed and found that because of the delay tactics of unscrupulous drawers of dishonoured Cheques due to easy filing of Appeals and obtaining stay on Proceedings, the object and purpose of the enactment of Section 138 of the N.I. Act was being frustrated, the Parliament has tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of the fine or compensation Awarded by the trial Court and the word used is not shall and therefore the discretion is vested with the first Appellate Court to direct the Appellant-Accused to deposit such sum and the Appellate Court has construed it as mandatory, which according to the learned Senior Advocate for the Appellants would be contrary to the Provisions of Section 148 of the N.I. Act as amended is concerned, considering the amended Section 148 of the N.I. Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the N.I. Act, though it is true that in amended Section 148 of the N.I. Act, the word used is may , it is generally to be construed as a Rule or shall and not to direct to deposit by the Appellate Court is an exception for which Special Reasons are to be assigned. Therefore amended Section 148 of the N.I. Act confers Power upon the Appellate Court to pass an order pending Appeal to direct the Appellant-Accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an Application filed by the Original Complainant or even on the Application filed by the Appellant-Accused Under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 138 of the N.I. Act, the Appellate Court is conferred with the Power to direct the Appellant to deposit such sum pending Appeal which shall be a minimum of 20% of the fine or compensation Awarded by the trial Court. 16. The Law, therefore, on the aforesaid subject being crystal clear, the Court has no hesitation in holding that the 2nd Additional District Sessions Judge, Vadodara has committed an error in operative part of the order in Clause-3, directing the Applicant-accused to deposit 20% amount of the disputed Cheque before the Nazir of the Court and hence, to that extent the impugned order needs to be interfered with to read that, the accused is directed to deposit 20% amount of the compensation as per the order of the trial Court, viz. 14th Additional Chief Judicial Magistrate, Vadodara, dated 12.03.2020. 17. The Provisions of Section 148 of the Act use phrase as under :- .....the Appellate Court may order the Appellant to deposit such sum which shall be a minimum of twenty percent of the fine or compensation Awarded by the trial Court.... 18. In the instant case, the trial Court has Awarded fine of ₹ 1,80,00,000/- along with simple imprisonme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to more than 20% as per the discretion of this Court. Considering the overall fact situation, where the accused person is ordered to pay fine of ₹ 1,80,00,000/- in one of the 9 complaints and similar amount ordered to be paid as fine over and above this, an amount of ₹ 1,50,00,000/- Awarded as compensation under Section 357 of the Criminal Procedure Code and what has been brought on the record of this case regarding decree issued by the Commercial Court in Commercial Civil Suit No. 43 of 2919 dated 09.12.2020 holding the plaintiff Company to entitle to recover ₹ 4,50,25,000/- with accrued rate of interest at the rate of 6% from 26.10.2012 till realization of the full amount, in the facts of this case, the Court does not deem it fit to enhance the amount of deposit to more than 20% of the compensation Awarded and hence, no interference on that count. 21. In view of the aforesaid, Criminal Misc.Application Nos. 18334 of 2020, 18404 of 2020, 18425 of 2020, 18410 of 2020, 18374 of 2020, 18411 of 2020, 18407 of 2020, 18409 of 2020 and 18371 of 2020 filed by the accused are hereby dismissed. Rule is discharged. The Applications filed by the Complainant being Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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