9911796707
TMI Blog2024 (1) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... complaints filed by the complainant before the NCDRC against the insurance company, allegedly seeking the same amount as the amount in question in the present case. This Court also notes that in the impugned order dated 20.01.2020, though the learned Sessions Court has dealt with the argument regarding pendency of insolvency petition, it has not given any finding on the second exceptional circumstance i.e. the medical condition of the petitioner. However, it also appears from the perusal of impugned order that the arguments in this regard were not addressed before the learned Sessions Court by the counsel for petitioner, though this ground was mentioned in the application filed under Section 148 of NI Act. This Court is of the opinion that the present case be remanded back to the learned Sessions Court/Appellate Court for deciding afresh, as to whether the three exceptional circumstances being raised by the petitioner herein fall within the category of exceptional circumstances so as to warrant waiver of condition to deposit 20% of fine amount during the pendency of appeal against conviction under Section 138 of NI Act. The petitioner shall also be at liberty to bring any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for offence under Section 138 of NI Act. Vide order on sentence dated 27.07.2019, the learned Magistrate had sentenced the petitioner to six months of simple imprisonment, along with payment of compensation of Rs. 6 crores within one month. Further, in default of payment of compensation, the petitioner was further sentenced to undergo six months of simple imprisonment. 4. The petitioner herein had then filed an appeal i.e. Criminal Appeal No. 174/2019, against her conviction under Section 138 of NI Act, and the sentence of the petitioner was suspended by the learned Sessions Court vide order dated 22.08.2019. 5. Thereafter, vide order dated 20.01.2020, the learned Sessions Court had dismissed the application filed under Section 148 of NI Act, read with Section 29 of the Provincial Insolvency Act seeking waiver of deposit of 20% amount of compensation. The relevant portion of the impugned order reads as under: Heard. In terms of the judgment of Surender Singh as relied by the Ld. Counsel for complainant, the accused is liable to deposit minimum of 20% of fine or compensation awarded by the trial court. The insolvency proceedings which were initiated belatedly is not an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is reflected in her ITR filed in the year 2010-11. Therefore, learned Senior Counsel for the petitioner prays that the impugned order be set aside and the petitioner be exempted from depositing the 20% amount of compensation in view of these exceptional circumstances, or the matter may be remanded back to the learned Sessions Court for deciding afresh the issue in question, after considering all the exceptional circumstances raised by the petitioner. 7. Learned counsel for the respondent, on the other hand, vehemently opposes the present petition and argues that there is no infirmity with the order passed the learned Sessions Court. It is stated that the learned Sessions Court has already considered the argument of pendency of insolvency proceedings and has rightly held that these proceedings were initiated belatedly and initiation of such proceedings have no bearing on the proceedings under Section 138 of NI Act. It is further argued that as held by Hon ble Apex Court in the case of Surinder Singh Deswal @ Col. S.S. Deswal v. Virender Gandhi (2019) 11 SCC 34, Section 148 of NI Act has to be given purposive interpretation to ensure that unscrupulous drawers of dishonoured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be directed by the Court on sufficient cause being shown by the complainant. 11. Moreover, this Bench in case of Gulshan Arora v. State (NCT of Delhi) 2023 SCC OnLine Del 2616 had examined the scope of Section 148 as well as the decision of Hon ble Apex Court in case of Surinder Singh Deswal (supra). The relevant portion of the judgment in case of Gulshan Arora (supra), which is also relevant for the purpose of adjudication of present case, is reproduced hereunder for reference: ...15. The aim, object and purport of Section 148 was explained by the Hon'ble Apex Court in Surinder Singh Deswal @ Col. S.S. Deswal v. Virender Gandhi, (2019) 11 SCC 341, (hereinafter Surinder Singh Deswal-I ) wherein it was categorically held that 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 hereinbelow: 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 objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of the dishonour of cheques. So as to see that due to delay tactics by the unscrupulous drawers of the dishonoured cheques due to easy filing of the appeals and obtaining stay in the proceedings, an injustice was caused to the payee of a dishonoured cheque who has to spend considerable time and resources in the court proceedings to realise the value of the cheque and having observed that such delay has compromised the sanctity 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 NI Act and also Section 138 of the NI Act. 16. 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/appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,66,82,746/-, due to economic depression in the year 2009. ii. The respondent had already filed two consumer complaints before NCDRC, New Delhi, against New India Assurance Co. Limited, seeking the same amount, which it was claiming from the present petitioner iii. The petitioner is aged about 57 years and is suffering from several ailments including Multiple Sclerosis since the year 1998. 14. However, this Court notes that in the application filed before the learned Sessions Court by the petitioner under Section 148 of NI Act seeking waiver of deposit of 20% of fine amount, only two circumstances were raised before the learned Sessions Court, which were claimed as exceptional in nature. The first exceptional circumstance was the pendency of petition filed by the petitioner under the Provincial Insolvency Act, and the second exceptional circumstance was the medical condition of the petitioner. Before this Court, one additional circumstance has been claimed as exceptional i.e. the pendency of consumer complaints filed by the complainant before the NCDRC against the insurance company, allegedly seeking the same amount as the amount in question in the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
