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TMI Blog2023 (5) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... NI Act, the Appellate Court, however, may choose to not impose such a condition upon an accused/appellant for special reasons to be assigned or recorded. The only ground on which waiver under Section 148 of NI Act is sought is that the petitioners have a good case of acquittal in the appeal in view of the above-stated facts. This ground alone, in the opinion of this Court, is not sufficient to exempt the petitioners from depositing 20% of the fine amount imposed by the learned Trial Court, as per Section 148 of NI Act. The fact remains that the parties were heard and their evidence was recorded and appreciated by the same Court in both the Complaint cases arising out of same set of facts, and the judgments were also passed on the same day. The merits of the appeal filed by the petitioners and their contentions cannot be considered while exercising powers under Section 148 of NI Act - every accused convicted under Section 138, who files an appeal against conviction, believes to have a good case for acquittal. This, by no stretch of imagination, can be held to fall within the purview of special reasons to allow a convict under Section 138 to not deposit a portion of the fine i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Mr. Kunal Anand, Mr. Sandesh Kumar, Mr. Jai Batra and Mr. Amresh Bind, Advocates for complainant. JUDGMENT SWARANA KANTA SHARMA, J. 1. By way of present petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter Cr.P.C. ), the petitioners seek quashing/setting aside of the order dated 01.10.2022 passed by learned Special Judge-NDPS/ASJ, South, Saket Courts, and order dated 06.01.2023 passed by learned ASJ-07, South, Saket Courts, (hereinafter Appellate Court ) in CA No. 134/2021 titled as Gulshan Arora Anr. vs. State (GNCT of Delhi) Anr. 2. The aforesaid impugned orders of the learned Appellate Court emanate from the Appeal filed by the petitioners herein against their conviction under Section 138 of Negotiable Instruments Act, 1881 (hereinafter NI Act ) in CT Case No. 11160/2017 titled as Arun Malhotra v. Gulshan Arora Anr. 2.1. The petitioners, vide judgment dated 22.10.2021, were held guilty under Section 138 of NI Act by the Court of learned MM (NI Act-03)/South, Saket Courts, New Delhi (hereinafter Trial Court ) and the concluding portion of said judgment reads as under: ... Conclusion : 25. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s awarded by the Ld. Trial Court. The amount be deposited within 60 days from today in the form of an FDR. The said FDR should be in the name of the respondent and shall be released to the respondent as and when requested. The respondent undertakes to repay this amount/FDR so received by him, subject to the disposal of this appeal. To come up for arguments on this appeal on 06.01.2023... 5. Thereafter, on 06.01.2023, learned Appellate Court vacated the order of suspension of sentence dated 17.12.2021 due to non-payment of 20% of the amount of fine within stipulated time period, and directed the petitioners to surrender within 7 days from passing of the said order. The relevant portion of this order is as under: ...As per Section 148 of NI ACT, the aforesaid minimum amount of Rs. 20% is to be deposited within 60 days from the date of order on sufficient cause being shown, a further period of 30 days may be granted. Hence, it can be seen that the court may grant a maximum period of 90 days for compliance of the said order, which in the present case have clearly lapsed. Even no explanation has been given by counsel for the appellants as to why she did not exercise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carved out in the present case from depositing the said amount of fine. It is stated that due to peculiar circumstances of the case, as mentioned in preceding para, the petitioners must be exempted from depositing the amount of fine. It is further argued by learned counsel for petitioners that impugned order dated 06.01.2023, vacating the order of suspension of sentence of petitioners is absolutely illegal and perverse in law. 9. On the other hand, learned APP for State as well as learned counsel for respondent no. 2 argues that the impugned orders do not suffer from any illegality or infirmity. It is stated that learned Appellate Court had rightly understood and applied the provisions of Section 148 while ordering the petitioners to deposit 20% of the fine imposed by learned Trial Court. It is further argued that as rightly held by Appellate Court, non-payment of such fine would dis-entitle the petitioners to enjoy the suspension of sentence during the entire period of pendency of their Appeal. It is also argued that the judgment dated 22.10.2021 vide which the petitioners were convicted under Section 138 NI Act also does not suffer from any illegality and, thus, no special ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the use of words may in Section 148 must be construed as shall in order to give force to the actual intent behind insertion of such provision under the NI Act, 1881. The relevant observations of the Apex Court are extracted herein-below: 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 appellant-accused to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial court...... 8. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the NI Act as amended, the appellate court may order the appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial court and the word used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cheque transactions, Parliament has thought it fit to amend Section 148 of the NI Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the N1 Act and also Section 138 of the NI Act. (Emphasis supplied) 14. A perusal of the aforesaid decision of Hon ble Apex Court also reveals that though the Appellate Court is required to ordinarily direct an accused/appellant to deposit a minimum of 20% of fine/compensation imposed upon him, either on its own while ordering suspension of sentence under Section 389 Cr.P.C. or upon an application moved by the complainant under Section 148 NI Act, the Appellate Court, however, may choose to not impose such a condition upon an accused/appellant for special reasons to be assigned or recorded. 15. The petitioners herein seek a waiver of the condition imposed upon them to deposit 20% of the fine during the pendency of their appeal against conviction. As stated in preceding para, this prayer can only be allowed in case the Court arrives at a conclusion that there are special circumstances and reasons to do so. 15.1. The primary ground of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of complainant. 15.4. As observed, the only ground on which waiver under Section 148 of NI Act is sought is that the petitioners have a good case of acquittal in the appeal in view of the above-stated facts. This ground alone, in the opinion of this Court, is not sufficient to exempt the petitioners from depositing 20% of the fine amount imposed by the learned Trial Court, as per Section 148 of NI Act. The fact remains that the parties were heard and their evidence was recorded and appreciated by the same Court in both the Complaint cases arising out of same set of facts, and the judgments were also passed on the same day. The merits of the appeal filed by the petitioners and their contentions cannot be considered while exercising powers under Section 148 of NI Act. 15.5. Needless to say, every accused convicted under Section 138, who files an appeal against conviction, believes to have a good case for acquittal. This, by no stretch of imagination, can be held to fall within the purview of special reasons to allow a convict under Section 138 to not deposit a portion of the fine imposed upon him during the pendency of appeal. Allowing such a prayer would be against the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining stay on proceedings. In this regard, a reference can also be made to the Statement of Object and Reasons of the Negotiable Instruments (Amendment) Act, 2018, which inter alia provides as under: STATEMENT OF OBJECTS AND REASONS 1. The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realise the value of the cheque. Such delays compromise the sanctity of cheque transactions. 2. It is proposed to amend the said Act with a view to address the issue of undue delay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 138 of NI Act without depositing or paying to the respondent the 20% of the amount of fine on the ground that suspension of sentence cannot be revoked, as holding so would defeat the inherent aim and object of Section 148 of NI Act and would render the respondent remediless. 23. Considering the mandate of Section 148 NI Act as explained by Apex Court in Surinder Singh Deswal-I (supra) and the powers of Appellate Court in revoking the suspension of sentence apropos Section 148 NI Act as explained by the Apex Court in Surinder Singh Deswal-II (supra), this Court finds no infirmity in the impugned order dated 06.01.2023 whereby the petitioners have been directed to surrender, upon non-fulfilment of condition under Section 148 NI Act. 24. Thus, in view of the overall facts and circumstances of the case, the petitioners are directed to deposit 20% of the amount of fine imposed by the learned Trial Court, within 10 days from today, in default of which the petitioners shall surrender before the Trial Court concerned within one week of last day on non-payment of aforesaid amount. 25. Accordingly, the present petition stands disposed of along with pending applications ..... X X X X Extracts X X X X X X X X Extracts X X X X
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