2019 (8) TMI 1782 - HC - Indian Laws

Court Upholds 25% Compensation Deposit Order; Petition Dismissed for Lack of Justification

Nurallah Kamruddin Veljee Versus Farid Veljee

The court upheld the order directing the petitioner to deposit 25% of the compensation, citing compliance with the amended Section 148 of the Negotiable ... Dishonor of Cheque - direction to petitioner to deposit 25% of the amount of compensation awarded by the Trial Court in accordance with the provisions of Section 148 of the Negotiable Instruments Act - case of petitioner is that the impugned order is illegal, arbitrary, unconstitutional and discriminatory as it has been passed without assigning any reasons or without appreciating the records and proceedings - principles of natural justice - HELD THAT:- Amendment Act No. 20/2018 amending Section 148 of the Act came into force with effect from 01/09/2018. Considering the object and purpose of amendment in Section 148 of the Act and while suspending the sentence in exercise of powers under Section 389 of the Criminal Procedure Code, when the first appellate Court directed the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned Trial Court, the same can be said to be absolutely in consonance with the Statement of Objects and Reasons of amendment in Section 148 of the Act. It is specifically observed 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 Act was being frustrated, the Parliament has therefore suitably amended Section 148 of the Act conferring power upon the Appellate Court to direct the convict accused/appellant to deposit such sum which shall be a minimum of 20% of the compensation defined or awarded by the Trial Court. It is difficult to accept the argument of the learned Counsel for the petitioner that he has been denied an opportunity to satisfy the learned Additional Sessions Court as to how the petitioner's case would come within the exceptions, for the reasons that the impugned order indicates not only an opportunity to hear the petitioner's Counsel was given, but the learned Appellate Court has also perused the appeal memo as well as the judgment and order of the Trial Court. Merely because the record and proceedings of the Trial Court were not before the Appellate Court at the time of passing the impugned order would not prohibit the Court from passing an order after giving a full hearing to the learned Counsel at the time of suspending the sentence. The appellant is directed to deposit 25% of the compensation/fine amount awarded by the trial court - Application allowed. Issues Involved:1. Legality and constitutionality of the order directing the petitioner to deposit 25% of the compensation.2. Interpretation and applicability of Section 148 of the Negotiable Instruments Act.3. Opportunity for the petitioner to present his case.4. Judicial discretion and the requirement of recording reasons in judicial orders.5. Exercise of inherent jurisdiction under Section 482 of the Criminal Procedure Code and Article 227 of the Constitution of India.Detailed Analysis:1. Legality and Constitutionality of the Order:The petitioner challenged the order dated 04/06/2019 by the Additional Sessions Judge, Panaji, directing the petitioner to deposit 25% of the compensation awarded by the Trial Court under Section 138 of the Negotiable Instruments Act. The petitioner argued that the order was illegal, arbitrary, unconstitutional, and discriminatory, as it was passed without assigning any reasons or appreciating the records and proceedings.2. Interpretation and Applicability of Section 148 of the Negotiable Instruments Act:The court referred to the Supreme Court judgment in Surinder Singh Deswal, which held that Section 148 of the Negotiable Instruments Act, as amended by Amendment Act No. 20/2018, applies to appeals against convictions under Section 138, regardless of whether the complaints were filed before the amendment. The court emphasized that the amendment aimed to address the issue of undue delay in cheque dishonour cases and to discourage frivolous litigation. The court noted that the word 'may' in Section 148 should be construed as 'shall,' making it mandatory for appellate courts to direct the deposit of a minimum of 20% of the fine or compensation unless exceptional reasons are provided.3. Opportunity for the Petitioner to Present His Case:The petitioner contended that he was not given an opportunity to present his case to show that his situation fell within the exceptions. However, the court found that the petitioner had been given an opportunity to be heard, and the Additional Sessions Judge had perused the appeal memo and the Trial Court's judgment. The court held that the absence of the Trial Court's records at the time of the order did not prevent the appellate court from passing the order after a full hearing.4. Judicial Discretion and Requirement of Recording Reasons:The petitioner argued that the impugned order lacked reasons, violating principles of natural justice. The court acknowledged that reasons are essential for judicial orders, as they provide clarity and facilitate appeals. However, the court found that the Additional Sessions Judge had exercised discretion appropriately and that the petitioner had not demonstrated any exceptional circumstances warranting a deviation from the mandatory deposit requirement under Section 148.5. Exercise of Inherent Jurisdiction:The court discussed the discretionary nature of powers under Article 227 of the Constitution and Section 482 of the Criminal Procedure Code. It emphasized that these powers should be exercised sparingly and only when justified by specific tests. The court found no abuse of process or miscarriage of justice in the impugned order and concluded that there was no basis for exercising inherent jurisdiction to interfere with the order.Conclusion:The court upheld the order directing the petitioner to deposit 25% of the compensation, finding it consistent with the amended Section 148 of the Negotiable Instruments Act and the Supreme Court's interpretation. The petition was dismissed, as the petitioner failed to demonstrate any exceptional circumstances or procedural violations warranting interference.