9911796707
TMI Blog2025 (3) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... assed in the very same two appeals by the very same learned ASJ is of no significance. Therefore, in such a scenario wherein the reasonings given by the learned ASJ in the impugned orders are in question, the present petitions challenging them are per se maintainable. In the considered opinion of this Court, neither of the aforesaid factors spelt out as ought to be for the learned ASJ to direct the petitioner to deposit 20% of compensation amount as awarded by the learned MM vide order(s) dated 08.07.2024. It is said so, since neither the presumptions of/ in the NI Act nor the appellant being pronounced as "guilty", per se, can be held sufficient for calling upon any such "guilty" like the appellant thereto/ petitioner herein to deposit the 20% of compensation amount as awarded by the learned MM at the very threshold of the appeal itself. Similarly, since vide a detailed judgment passed by the learned MM, has convicted the appellant (like the petitioner herein) and is pronounced as "guilty" cannot qualify to be a reason, necessarily not a sufficient one, since the appeal thereagainst is already pending adjudication/ disposal before the very same learned ASJ and doing so will tanta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time and repaid them within the stipulated time as well. Once both respondents allegedly collectively advanced monetary loan of Rs. 53,00,000/- to the petitioner since, he had incurred losses in his business and also wanted to get his sister married. Against payment thereof, the petitioner issued two post-dated cheques as security bearing nos.47870 and 47871 for Rs. 25,00,000/- and Rs. 28,00,000/- drawn on IDBI Bank, Azadpur, Delhi in the name of the two respondents herein respectively. 4. As per respondent(s), both the said cheques were dishonoured due to 'insufficient funds' upon their presentation, the respondent Sumitra Mittal filed Ct. Case No. 2197/2020 qua cheque bearing nos. 47871 for Rs. 25,00,000/- drawn on IDBI Bank, Azadpur, Delhi as also Mr. Rajesh Mittal filed Ct. Case No. 2196/2020 qua cheque bearing no. 47870 for Rs. 28,00,000/- drawn on IDBI Bank, Azadpur, Delhi, under Section 138 of the NI Act at the same time before the learned MM. 5. In both complaint cases, the learned MM found the petitioner guilty and convicted him under Section 138 read with Section 141 of the NI Act vide two separate orders, both dated 01.07.2024 passed in both the cases. 6. Being aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner to pay and has caused grave injustice to him. Thereafter, relying upon Jamboo Bhandari (supra), Rakesh Ranjan Shrivastava vs. State of Jharkhand & Anr. (2024) 4 SCC 419, C.R. Balasubramanian vs. P. Eswaramoorthi 2024:MHC:322, Baiju vs. State of Kerala 2023 SCC OnLine Ker 10204, Dr. Amit George, submits that Section 148 of the NI Act does not impose a blanket requirement for deposit and the Court must exercise discretion in a fair and just manner. In fact, Dr. Amit George submits that by placing an undue financial burden on the petitioner without considering his capacity to pay effectively, deprives him of the right to appeal, thereby causing him irreparable loss, harm and injury. 11. Controverting the above, learned counsel for the respondents in both the petitions, Mr. F.K. Jha, supporting the two impugned orders submits that the requirement of deposit under Section 148 of the NI Act is a safeguard meant to protect the rights of complainants (like the respondents herein) in cases under Section 138 of the Act. As per Mr. F.K. Jha, the petitioner had failed to establish any genuine financial incapacity and mere claims of hardship do not entitle an accused like the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment passed by the learned MM in an already adjudicated proceedings under Section 138 of the NI Act as also for safeguarding the interests of the original complainant, however, at the same time, it also gave a leeway to such "guilty" person/ entity for proceeding with the appeal, albeit, subject to a minimum deposit of 20% of the fine or compensation awarded by the learned MM. 17. Though the above gives extra teeth to the appellate Court (like the learned ASJ herein), however, this is also a balancing act brought out by the legislation for giving a level playing field to both the complainant as well as the "guilty" person/ entity involved in the complaint. 18. Further, as apparent from the phraseology carefully used by the legislature in Section 148, since the appellate Court (like the learned ASJ herein) "... ...may order the appellant to deposit... ..." the minimum deposit of 20% of the fine or compensation awarded by the learned MM, the same is clearly, subject to exercise of discretion by the appellate Court (like the learned ASJ herein). Furthermore, it is also clear therefrom that any order of deposit by the appellate Court (like the learned ASJ herein) is not compulsory a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s amended is concerned, considering the amended Section 148 of the NI Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the NI Act, though it is true that in the amended Section 148 of the NI Act, the word used is "may", it is generally to be construed as a "rule" or "shall" and not to direct to deposit 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial court. The second limb is that, once it is decided to order deposit of fine or compensation, a minimum of twenty percent of the fine or compensation is to be ordered to deposited. Therefore, the duty of the appellate court is firstly to decide whether such a deposit is to be ordered. As observed by the Apex court in Jamboo Bhandari's case (supra), when an accused applies under S. 389 of the CrPC for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls within the exception or not. The appellate court while suspending a sentence cannot pass a blanket order in all cases to deposit 20% of the fine or compensation without assigning any reason. Moreover, once the court has decided to order deposit as per Section 148 (1) of the Negotiable Instruments Act, the amount of deposit ordered by the Court can be varied from the minimum 20% of the fine or compensation to a higher percent of the fine or compensation. That also shows that a speaking order is necessary. Even if the court is imposing 20% of the fine or comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the compensation amount, in compliance of previous order dated 07.08.2024 on or before NDOH." 27. Without challenging any of the aforesaid earlier orders dated 07.08.2024 and 23.09.2024, the petitioner instead filed an application seeking waiver of deposition of 20% of the compensation amount in both the appeals before the learned ASJ wherein the two impugned orders under challenge have been passed by the learned ASJ recording as under:- "The present application has been moved with the requests for waiving off deposition of 20% of compensation amount in consonance with section 148 of NI Act. Perusal of the TCR further shows that it is the case of respondent/ complainant that the cheque in question was issued by appellant in discharge of his legal liability towards respondent/ complainant to repay the loan taken by him for the marriage of his sister and to run his business. Keeping in view of the presumptions laid down in Negotiable Instruments Act, prima facie case is clearly made out in favour of respondent/complainant. Further, a detailed judgment of conviction has been passed against the present appellant against which the present appeal has been filed which is yet to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ASJ in the two impugned orders sufficient to sustain. 31. A perusal of both the impugned orders passed by the learned ASJ reveal that they are premised "Keeping in view of the presumptions laid down in Negotiable Instruments Act, prima facie case is clearly made out in favour of respondent/ complainant... ..." and merely because "... ...a detailed judgment of conviction has been passed against the present appellant against which the present appeal has been filed which is yet to be decided by this Court." as also the that the "... ...appellant is in the business of Saree and his office is situated at Chandni Chowk, Delhi which goes on to shows that he is having financial capacity to deposit 20% of the compensation amount... ...". 32. In the considered opinion of this Court, neither of the aforesaid factors spelt out as ought to be for the learned ASJ to direct the petitioner to deposit 20% of compensation amount as awarded by the learned MM vide order(s) dated 08.07.2024. I say so, since neither the presumptions of/ in the NI Act nor the appellant being pronounced as "guilty", per se, can be held sufficient for calling upon any such "guilty" like the appellant thereto/ petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
