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TMI Blog2022 (6) TMI 1306X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Sessions Judge in interpreting the amendment qua Section 148 of the Act. But, the learned Sessions Judge appears to have generated one. Petition allowed. - WRIT PETITION No. 4550 OF 2020 (GM-RES) - - - Dated:- 16-6-2022 - THE HON'BLE MR. JUSTICE M. NAGAPRASANNA For the Petitioner : SRI SYED ISHRATHULLA HUSSAINI, PARTY-IN-PERSON For the Respondent : SRI SATISH V., ADVOCATE ORDER The petitioner who is in person has knocked the doors of this Court in the subject petition seeking modification of the order passed by XIII Additional City Civil and Sessions Judge, Mayohall Unit, Bangalore in Criminal Appeal No.25120 of 2018 in terms of its order dated 23-12-2019 inasmuch as, the Court directs deposit of 10% of the amount of fine imposed on conviction upon the respondent contrary to the statute. 2. Heard the petitioner in person and Sri V. Satish, learned counsel for the respondent. 3. Sans details, facts in brief, are as follows: A transaction between the petitioner and the respondent leads to registration of a crime for offence under Section 138 of the Negotiable Instrument Act, 1881 ( the Act for short) and invocation of Section 200 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands today reads as follows: 148. 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 subsection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts/confers such discretion upon the appellate Court for directing payment to the complainant and refund of the amount in the event of acquittal should also be done within an outer limit of 60 days extendable by 30 days on sufficient cause being shown by the complainant. Therefore, for deposit and refund there is no discretion conferred by the statute for the concerned Court for extension beyond, 90 days in each case. It is the aforesaid interpretation that is germane to be noticed in the case at hand. 9. The afore-quoted facts are not in dispute. The learned Sessions Judge by order dated 16-07-2018 suspended the sentence subject to the appellant/accused depositing 10% of the compensation amount and on execution of personal bond for Rs.50,000/-. On the contention of the petitioner, the Court holds that the Act came into force in the year 2018 and the appeal is of the year 2018. Hence, it was not proper to accept the contention of the petitioner that the accused should deposit 20% of the cheque amount and rejects the prayer of the petitioner for directing deposit of 20%. The petitioner calls this order in question in the present petition. The issue whether the amendment to Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. It is, therefore, proposed to introduce the Negotiable Instruments (Amendment) Bill, 2017 to provide, inter alia, for the following, namely- (i) to insert a new Section 143-A in the said Act to provide that the court trying an offence under Section 138, may order the drawer of the cheque to pay interim compensation to the complainant, in a summary 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. *** 148. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolutely in consonance with the Statement of Objects and Reasons of amendment in Section 148 of the NI Act. 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 NI Act was being frustrated, Parliament has thought it fit to amend Section 148 of the NI Act, by which the first appellate court, in an appeal challenging the order of conviction under Section 138 of the NI Act, is conferred with the power to direct the convicted appellantaccused to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial court. By the amendment in Section 148 of the NI Act, it cannot be said that any vested right of appeal of the appellantaccused has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in Section 148 of the NI Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 1-9-2018 shall not be applicable has no substance and cannot be accepted, as by amendment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellate court is an exception for which special reasons are to be assigned. Therefore amended Section 148 of the NI 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 Section 389 CrPC to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the NI Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the appellant. Therefore, if amended Section 148 of the NI Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the NI Act, but also Section 138 of the NI Act. The Negotiable Instruments Act has been amended from ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing on behalf of the original complainant. It is submitted that as per amended Section 148 of the NI Act, the appellantaccused have to deposit the amount of compensation/fine as directed by the appellate court within a period of 60 days which can be further extended by a further period of 30 days as may be directed by the Court on sufficient cause being shown by the appellants. However, in the facts and circumstances of the case and considering the fact that the appellants were bona fide litigating before this Court challenging the order passed by the first appellate court, in exercise of powers under Article 142 of the Constitution of India and in the peculiar facts and circumstances of the case and the amount to be deposited is a huge amount, we grant further four weeks' time from today to the appellants to deposit the amount as directed by the first appellate court, confirmed by the High Court and further confirmed by this Court. (Emphasis supplied) In the light of the judgment of the Apex Court holding that amendment to Section 148 of the Act was retrospective and would become applicable against the order of conviction and suspension of sentence even if the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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