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TMI Blog2022 (10) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... of 5 percent. As a consequence of dishonor of the cheque, the proceedings of Complaint Case No. 3321 of 2015, Ravi Prakash Vs. Kassa Finvest Private Limited and others, was drawn by the opposite party No. 2 herein, i.e. Mr. Ravi Prakash, by invoking the provision contained under Section 138, 141 and 142 of the Negotiable Instruments Act. 2. On an appreciation of the status of the present applicant, as to be a holder of 5 percent of shares of the company, and being one of the Directors, which has been classified by the impugned judgment, which had been rendered in the aforesaid Complaint Case No. 3321 of 2015, on the basis since he being the authorised signatory of the company, ultimately on the culmination of the proceedings by the Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Criminal Procedure, 1973, in an appeal by the drawer against convict ion 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 sub-Section shall be in addition to any interim compensation paid by the appellant under Section 143A. 7. The issue would be, as to who could be determined to be the drawer? Before making any comments upon the Authorities, which has been relied by the learned counsel for the parties, as per the opinion of this Court, is that since till the date the judgement of conviction i.e. dated 22nd April 2022, holds good in the eyes of law, and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, which has been made by the judgement dated 22nd April 2022, for all practical purposes would be treated as to be a drawer. 10. The learned counsel for the applicant has at tempted to draw a distinction in the light of the judgement reported in 2018 (13) SCC 663, N. Harihara Krishnan Vs. J. Thomas, and particularly, he has referred to para 20 of the said judgment, which is extracted hereunder: - 20. The offence under Section 138 of The Act is capable of being committed only by the drawer of the cheque. The logic of the High Court that since the offence is already taken cognizance of, there is no need to take cognizance of the offence against Dakshin is flawed. Section 141 stipulates the liability for the offence punishable under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, could be an argument which could be extended by the applicant at the appellate stage, but not at the stage when the appellate Court has exercised its powers under Section 148 of the N. I. Act, without disturbing the status of the present applicant, who has been determined as to be a drawer for the purposes by the judgement of conviction. 14. What is relevant to observe is, at this juncture is, that this judgement on which the reliance has been placed by the learned counsel for the applicant, it does not deals with the aspect of the implications of Section 148 of the Negotiable Instruments Act. Apart from it, this judgement has been rendered by two Judges bench of the Hon'ble Apex Court. 15. In response to it, the learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision of the Act, be punished with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. The proviso to the said Section postulates under what circumstances the Section shall not apply. In the case at hand, we are not concerned with the said aspect. It will not be out of place to state that the main part of the provision deals with the basic ingredients and the proviso deals with certain circumstances and lays certain conditions where it will not be applicable. The emphasis has been laid on the factum that the cheque has to be drawn by a person on the account maintained by him and he must have issued the cheque in discharge of any debt or other liability. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers, it cannot be faulted off, because the precaution intended by the legislature of issues direction to deposit 20 per cent of the minimum amount, at an interim appellate stage, was inserted by Act No. 20 of 2018, to meet an objective of safeguarding the interest of the complainant in an eventuality of failure of an Appeal. 19. For the aforesaid reasons, this Court is of the considered view, that when the principal proceedings was itself under Section 138, to be read with Section 141 of the Negotiable Instruments Act and particularly, when the issue about his status as being a Director was not under challenge or put to determination, when the summoning order was issued by the proceeding where the complaint case, as it was drawn after the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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