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TMI Blog2024 (3) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the Chief Justice pursuant to a reference order dated 20.02.2014 of a learned Single Judge of this Court. The issue referred to us concerns the interpretation of the provisions of Section 148 of the Negotiable Instruments Act, 1881 [hereinafter referred to as the "N.I. Act"] that deals with the power of an Appellate Court to order payment pending an appeal against conviction. In particular, we are called upon to clarify the nature and extent of the statutory discretion conferred on the Appellate Court, in the matter of ordering payments pending appeal against conviction under Section 138 of the N.I. Act. as also on the requirement of furnishing reasons in support of the order passed by the Appellate Court in exercise of that discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the statutory provision and express our opinion on the interpretation to be placed on the provisions of Section 148 of the N.I. Act in the light of the binding precedents of the Supreme Court in Surinder Singh Deswal and Jamboo Bhandari (supra). 5. Section 148 of the N.I. Act 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 (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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 realize 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 in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. The said provision reads as under: "389. Suspension of sentence pending the appeal, release of appellant on bail (1) Pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond: PROVIDED that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release; PROVID ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Cr.P.C. to suspend the sentence imposed by the trial court. Noticing that the provisions of Section 148 of the N.I. Act, as amended, conferred powers on an Appellate Court that was considering an appeal against a conviction and sentence under Section 138 of the N.I. Act, which powers were an exception to the general power available to an Appellate Court under Section 389 of the Cr.P.C. to unconditionally suspend the sentence pending appeals challenging a conviction and sentence, the Supreme Court found that while it was no doubt true that under the amended Section 148 of the N.I. Act, the word used in the context of exercising the discretion is "may", it is generally to be construed as a "rule" or "shall" and it was only in exceptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion by the Appellate Court under Section 148 of the N.I. Act: (a) Under Section 148 of the N.I. Act, the Appellate Court has a discretion to either order the appellant to deposit a portion of the fine or compensation awarded by the trial court or to waive such deposit. In either event, since it would be exercising a statutory discretion, the Appellate Court would be legally obliged to furnish reasons for its decision so as to unambiguously indicate that its discretion was exercised keeping in mind the object of the statutory provision. (b) If the Appellate Court, pursuant to the exercise of its discretion, finds that the appellant is required to deposit a portion of the fine or compensation awarded by the trial court pending dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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