TaxTMI 
TaxTMI 
2019 (3) TMI 1081
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....oner in the Sessions Court and prays that the said orders in the Appeals be quashed and set aside. 3. In all the 3 appeals, cheques of different amounts issued to the complainant were bounced. After conviction, the petitioner filed Appeals challenging those orders. The appellate Court at the time of entertaining the appeal directed the accused to deposit 25% of the total compensation and if it is not deposited, the order of suspension of sentence is to be automatically vacated. 4. Mr.Jha, the learned Counsel for the petitioner, has submitted that every convict has a right to appeal. Due to imposition of such condition, his right to appeal and bail is taken away. The right to bail should be unconditional. He submitted the provisions of sections 143A and 148 which are enacted on 12.8.2018 and which came into effect from 1.9.2018 are ultra vires to the Article 21 of the Constitution of India. He submitted that when the offence in this matter was committed and the complaint was filed, at that time, these two provisions were not in existence. This being a substantive law, the said provisions cannot be applied retrospectively. He submitted that if the convict has no capacity....
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....ithin such further period not exceeding thirty days as may be directed by the Court on sufficient case being shown by the complainant. (5) The interim compensation payable under this section may be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure, 1973 (2 of 1974), shall be reduced by the amount paid or recovered as interim compensation under this section." 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 this sub-section shall be in addition to any interim compensation paid by the appellant under section 143-A. (2) The amount referred to in sub-section (1) shall be d....
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....s statement of objects and reasons has expressed that the proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing the lending institutions including the banks to continue to extend financing to the productive sectors of economy. Sub-clause (2) of clause (1) of the bill reads as follows: "It shall come into force on such date as the Central Government may by notification in the official gazette, appoint." 10. The Central Government has notified this Act on 1.9.2018. Thus, the issue is whether the provisions can be applied only to those complaints which are filed after 1.9.2018 or the complaints or appeals which are already pending wherein the Courts can pass the orders only after 1.9.2018. 11. In the case of Anil Kumar Goel vs. Kishan Chand Kaura, (supra), the applicant had filed application before the trial Court for discharge from section 138 of the Negotiable Instruments Act. Section 5 of the General Clauses Act states that the day of the operation of any Act shall commence when the assent of the President is received. In the case of Anil Kumar Goel (supra), the Supreme Court has relied on the ratio laid down in t....
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....of the cheque. However, under section 148, it is stated that the Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine." These clauses in these two sections reflect the intention of the Legislature that a person at the stage of trial is always considered innocent till he is found guilty and, therefore, the ceiling of 20% compensation is mentioned. However, in the appeal, when the first Court holds the accused guilty and thus, once he is convicted, then, the appellate Court is given the power to pass order directing the accused to deposit the amount which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. It is further stated in section 148 that the amount payable under this subsection shall be in addition to any interim compensation paid by the appellant under section 143A. 14. The Legislature has also taken care of the accused if at all he is not held guilty and acquitted either at the trial or in the appeal. The subsection (4) of section 143A and the proviso to section 148 state about the repayment of the amount by the complainant to the accused. In the event of acquittal, the said amount also t....
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....ent also. However, by way of amendment, at what stage the amount of compensation can be granted is made clear in this special statute. The compensation is directed at the end of the trial if the accused is found guilty. However, the said stage is preponed by enacting section 143A(4) and proviso to section 148 of the Act enabling Courts to grant compensation on condition as mentioned therein. Both the sections start with non-obstante clauses giving overriding effect to Criminal Code. 17. Mr.Jha has challenged the order mainly on the ground that in the event of failure in payment of fine or compensation, the bail would be cancelled. Whether such condition depriving the accused of his liberty can be imposed under section 143A or 148 of the Negotiable Instruments Act is the issue raised by Mr.Jha. This issue can be answered on the background of the discussion above and on the basis of the ratio laid down by the Supreme Court in the case of Anil Kumar Goel (supra) and Dilip S. Dahanukar (supra). Right to appeal is a statutory right and it protects the liberty of the convicted accused and provided further forum to agitate the issue of the liberty of the accused. The right to appeal....
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....f he fails to comply with such direction, then, what is its effect. Subsection (3) of Section 143A states that the interim compensation shall be paid within sixty days from the date of the order under subsection (1). However, subsection (1) of section 143A states that the Court may order the drawer to pay interim compensation. So, it leaves discretion to the trial Court to pass such order of interim compensation and if such interim direction is given, the ceiling limit under section subsection (2) of 20% of the cheque amount is prescribed. The period of payment is 60 days and can be extended for a further period of 30 days. Subsection (4) is about return of the amount of compensation in the event of acquittal. Subsection (5) of section 143A refers to section 421 of the Code of Criminal Procedure. It states that the interim compensation payable under this section may be recovered as if it is a fine under section 421 of the Code of Criminal Procedure. Thus, for the purpose of recovery, this interim compensation takes a colour of fine. 20. Section 421 reads as under: "421. Warrant for levy of fine. (1) When an offender has been sentenced to pay a fine, the Court passing the s....
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....ry of compensation granted under section 148 can be necessarily done by following the procedure laid down and available under section 357 of the Code of Criminal Procedure and amount of fine is recoverable by following procedure under section 421 of the Code. The Section is worded as 'appellate Court 'may' order'. Thus, it gives discretion to the appellate Court to invoke its discretionary power under section 148 while directing to deposit 20% of the amount of fine or compensation. In this clause, both the words 'may' and 'shall' are present. The words in section 148 - the appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent. Hence, by literal meaning of this sentence; discretion is given to the appellate Court to direct the appellant to deposit the sum but if at all such direction is given, that sum should not be less than 20% of the amount of fine or compensation awarded by the trial Court. Thus, the court has discretion and it may not pass the order but if the order is passed, then, the minimum amount payable should be 20% of the fine or compensation. 22. The grievance is made by Mr.Jha that if the accused has no ca....
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....iciously. Ordinarily, an accused shall not be taken in custody during trial. Thus, while exercising the appellate power, ordinarily, a person should not suffer imprisonment only because the conditions imposed for suspending the sentence are harsh. 69. We are of the opinion that having regard to the aforementioned factors the amount of compensation not only must be reasonable one, the conditions for suspending the sentence should also be reasonable. It is only with that intent in view, the doctrine of purposive construction should be applied. 70. We would, however, like to put a note of caution that the right of an accused unnecessarily need not be enlarged but it is the court's duty to duly protect his right. 71. We are prima facie of the opinion (without going into the merit of the appeal) that the direction of the learned trial Judge appears to be somewhat unreasonable. The appellant herein has been sentenced to imprisonment. Only fine has been imposed on the Company. Thus, for all intent and purpose, the learned trial Judge has invoked both subsections (1) and (3) of Section 357 of the Code. The liability of the appellant herein was a vicarious one in terms of Secti....