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TMI Blog2022 (1) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... to be followed stricto sensu with purposive interpretation. Section 148 of the N.I. Act provides for the deposit of a minimum of 20% of the fine amount or compensation by the appellant-accused in an appeal preferred against conviction under Section 138 of the N.I. Act - In this case, the applicant-accused has been ordered to pay compensation of ₹ 19 Lacs by the trial Court, which, of course, is equivalent to the cheque amount and thus, to that effect, the provisions of Section 357(2) of Cr.P.C. would not apply to the present case. However, there is an error in the nomenclature adopted by the Sessions Court while passing the order dated 25.02.2019 inasmuch as the applicant-appellant has been directed to deposit 30% of the cheque amount instead of the amount of fine or compensation , which is the term used in the provision of Section 148 of the N.I. Act. Hence, the terminology used by the Sessions Courts in the operative part of the impugned order deserves to be modified to that extent. Considering the provisions of Section 148 of the N.I. Act and the Statement of Object and Reasons for the amendment, this Court finds no illegality in the direction issued by the Ses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-complainant demanded such amount on expiry of the above period, the applicant issued two cheques (i) Cheque No.903380 dated 04.07.2016 for ₹ 10,00,000/- and (ii) Cheque No.000001 dated 04.07.2016 for ₹ 9,00,000/-. The respondent-complainant deposited the said cheques in his Bank; however, both the cheques were returned on 05.07.2016 with the endorsement of insufficient funds . On 25.07.2017 the respondent-complainant issued legal notice to the applicant, which were duly served. As the applicant failed to repay the cheque amount, the respondent-complainant filed a complaint under Section 138 of the N.I. Act, which came to be registered as Criminal Case No.10955 of 2016 before the trial Court at Rajkot. 3.1 After hearing both the sides, the trial Court passed judgment and order dated 25.01.2019 by which the applicant-accused was convicted for the offence punishable under Section 138 of the N.I. Act and was sentenced to undergo simple imprisonment for One year and was ordered to pay compensation of ₹ 19,00,000/-, i.e. the cheque amount, to the respondent-complainant and in case of failure to pay such amount, the applicant-accused was ordered to undergo simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be awarded separately. It may be recoverable as if it is a fine in terms of Section 431 of the Code but by reason thereof it would not become automatically recoverable forthwith. The legal position, however, must be considered keeping in view the purport and object of the Act. An appeal is indisputably a statutory right and an offender who has been convicted is entitled to avail the right of appeal which is provided for under Section 374 of the Code. Right of Appeal from a judgment of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a Fundamental Right. Right of Appeal, thus, can neither be interfered with or impaired, nor it can be subjected to any condition. 4.3 Reliance is also placed on a recent decision of the Apex Court passed in Criminal Appeal No.747 of 2021 (Arising out of Special Leave Petition (Crl.) No.3794/2021) rendered in the case of R. Kalai Selvi v. Bheemappa decided on 04.08.2021, particularly, on the following observations: Taking into account all the facts and circumstances of the case as also the law applicable, we are clearly of the view that the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of powers under Section 148 of the N.I. Act. He emphasized that the said provision came into being on 01.09.2018 whereas, the criminal case under Section 138 of the N.I. Act was instituted much prior thereto, i.e. in 2016 and therefore, the amended provision of Section 148 could not be made applicable to the case instituted in the year 2016. 5.1 It is contended by learned advocate Mr. Baxi that when the section itself, i.e. Section 148 of the N.I. Act, is silent on the issue whether it shall have a retrospective effect or not, then the provision should be interpreted in a manner that it is directory in nature and not mandatory. If the Legislature intended to give a retrospective effect to Section 148, then it would have been expressly mentioned in the provision and would not have remained silent on that part. The provision, being sub silentio on the issue of the date of its coming into force, would imply that it was intended to come into effect on the date so mentioned at the time of its enactment. He, therefore, submitted that the Sessions Court has committed serious error in law and on facts in invoking the provisions of Section 148 in the present case. 6. On 14.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lalitkumar Sagar and Hiren Lalitbhai Sagar alongwith respondent No.2 Paresh Lalitbhai Sagar who is stated to have died on 18.11.2019. Let the compliance be made for bringing the legal heirs on record. List the matter on 28.09.2021. 10. It appears that no application was filed for bringing the legal heirs of deceased-respondent, original complainant, on record in spite of the above order. Thereafter, when the matter was listed before this Court on 29.11.2021, the son of the deceased-respondent, original complainant, Dayam Paresh Sagar, appeared before the Court and submitted an application with a prayer to join him as the legal heir of deceased-complainant, which was granted. The Registry was directed to amend the cause-title of the application by joining the son of deceased-respondent as his legal heir. 11. Learned APP Mr. Pranav Trivedi submitted that the provision of Section 148 of the N.I. Act empowers the appellate Court to order deposit of minimum of 20% of the fine or compensation awarded by the trial Court in an appeal preferred by the drawer against his conviction under Section 138. In the present case, the amount of cheque is ₹ 19 Lacs and the trial Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion shall be in addition to any interim compensation paid by the appellant under section 143A. (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 at the beginning of the relevant financial year, 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 complainant. 13. The above provision came to be inserted by Amendment Act No. 20 of 2018 with effect from 01st September 2018. The Statement of Objects and Reasons of the amended Act reads thus: 1. The Negotiable Instruments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Statement of Objects and Reasons, it is clear that the amendment was brought in to address the issue of undue delay in final resolution of cheque dishonor cases so as to provide relief to payees of dishonored cheques and to discourage frivolous and unnecessary litigation. It was thought fit to amend Section 148 of the N.I. Act as it was found that the object and purpose of enactment of Section 138 was being frustrated on account of the delay tactics of unscrupulous drawers of dishonored cheques due to easy filing of appeals and obtaining stay on proceedings. By this amendment, the first appellate Court, before which the appeal challenging the order of conviction under Section 138 is filed, has been conferred with the power to direct the convicted accused-appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. With the enactment of Section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused-appellant has been taken away and / or affected. 15. A plea of sub silentio has been raised on behalf of the applicant on the ground that the amendment brought in with the introduction of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of imprisonment as well as of fine without any condition or with conditions. There are no fetters on the power of the Appellate Court while exercising jurisdiction under 389 Cr.P.C. The Appellate Court could have suspended the sentence and fine both or could have directed for deposit of fine or part of fine. 17. In Surinder Singh Deswal @ Colonel S. S. Deswal and others v. Virender Gandhi, (2019) 11 SCC 341 , the Apex Court held as under: 7. It is the case on behalf of the appellants that as the criminal complaints against the appellants under Section 138 of the N.I. Act were lodged/filed before the amendment Act No. 20/2018 by which Section 148 of the N.I. Act came to be amended and therefore amended Section 148 of the N.I. Act shall not be made applicable. However, it is required to be noted that at the time when the appeals against the conviction of the appellants for the offence under Section 138 of the N.I. Act were preferred, Amendment Act No. 20/2018 amending Section 148 of the N.I. Act came into force w.e.f. 1.9.2018. Even, at the time when the appellants submitted application/s under Section 389 of the Cr.P.C. to suspend the sentence pending appeals chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of conviction and sentence for the offence under Section 138 of the N.I. Act, even in a case where the criminal complaints for the offence under Section 138 of the N.I. Act were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018. If such a purposive interpretation is not adopted, in that case, the object and purpose of amendment in Section 148 of the N.I. Act would be frustrated. Therefore, as such, no error has been committed by the learned first appellate court directing the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court considering Section 148 of the N.I. Act, as amended. 18. It is true that the right to appeal is an absolute right. However, in a case where a judgment and order of conviction and sentence is passed, the Court may order release of the accused on bail having regard to the nature of offence as also to other relevant factors, including its effect on society. In the present case, the cheques in question were issued in November December 2013 and there is no quarrel on the issue that the amounts involved are the legal dues payable by the applicant-accused to the respondent-complainant. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thus, to that effect, the provisions of Section 357(2) of Cr.P.C. would not apply to the present case. However, there is an error in the nomenclature adopted by the Sessions Court while passing the order dated 25.02.2019 inasmuch as the applicant-appellant has been directed to deposit 30% of the cheque amount instead of the amount of fine or compensation , which is the term used in the provision of Section 148 of the N.I. Act. Hence, the terminology used by the Sessions Courts in the operative part of the impugned order deserves to be modified to that extent. 20. As recorded in the earlier part of this judgment, no efforts were made by the applicant herein to bring on record the legal heir of deceased-complainant, though the details thereof were provided by the Court and all attempts were made by the applicant-accused to deprive the respondent-complainant of his legal dues. This Court is mindful of the fact that 30% of the amount would come to ₹ 5,70,000/-; but at the same time, the matter is required to be considered from other angle also, i.e. the period for which the respondent-complainant was deprived of his legal dues and that, even after the conviction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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