TaxTMI 
TaxTMI 
2021 (6) TMI 991
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.... of the Appellate Court in the Proceedings under the Provisions of Section 138 of the Negotiable Instruments Act. Criminal Misc. Application Nos. 18334 of 2020, 18404 of 2020, 18425 of 2020, 18410 of 2020, 18374 of 2020, 18411 of 2020, 18407 of 2020, 18409 of 2020 and 18371 of 2020 are filed by the original accused and Criminal Misc. Application Nos. 19499 of 2020, 19560 of 2020, 19497 of 2020, 19455 of 2020, 19459 of 2020, 19461 of 2020, 19553 of 2020, 19551 of 2020 and 19555 of 2020 are filed filed by the original Complainant. The dispute between the parties which requires consideration is imposition of condition by the Appellate Court while enlarging the convict on bail. 3. With consent of both the sides these Applications are taken up for hearing and final disposal jointly. The facts are recorded from lead matters being Criminal Misc.Application No. 18334 of 2020 and Criminal Misc.Application No. 19499 of 2020, filed each by the original accused and original Complainant respectively. 4. In the Application filed by the original accused being Criminal Misc.Application No. 18334 of 2020, the prayers are as under :- "B) Your Lordships be pleased to delete Condition N....
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....ction 374 of the Criminal Procedure Code. Along with the Appeal, Application Exh. 4 is also filed under Section 389(3) of the Criminal Procedure Code for suspending the sentence. Upon by-parte hearing, 2nd Additional District and Sessions Judge, Vadodara has passed order dated 01.10.2020 below Application Exh. 4, relevant part of which reads as under :- "1. The present Application is hereby allowed. 2. order passed by Ld. Trial Court in Cr. Case No. 48441 of 2011 (Old CC No. 4865/2011) dtd.12/03/2020 is hereby suspended till final disposal of the Appeal on submission of surety bond of Rs. 25,000/- and personal bond of like amount. 3. The Applicants are directed to deposit 20% amount of the disputed Cheque before the Nazir of this Court. 4. The Applicants are further directed to pay Rs. 10,000/- towards the cost to original Complainant and present original Complainant." 6.1. It is the aforesaid order which is subject matter of challenge by both the sides, more particularly Clause-3 of the order which provides for deposit of 20% of the amount of disputed Cheques before the Nazir of the Appellate Court. 6.2. The details regarding all the Appea....
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....be dishonoured. 8.2. It is submitted that against the Applicant-accused, similar other complaints adopting similar modus have been filed by the Complainant by giving exaggerated figures and therefore, the Appellate Court ought to have taken this aspect into consideration while imposing Condition of Bail. 8.3. It is also submitted that the Courts below have not properly considered the conduct of the original Complainant, who from the very beginning was having an intention to cheat the Applicants-accused because behind the back of the Applicants-accused when the payment was made to the Applicants-accused, it was noted as Loan Transaction and on the other hand, when the Transaction had taken place with the original land owners, Sale Deed has been executed in favour of family Members of the original Complainant-original Complainant herein and payment has been made to the Original Land Owners in cash. It is submitted that when the original Complainant had done is that for the transaction with the original land owners, amount has been deposited in the account of the Applicants herein, out of which, there would be part of it i.e. some portion had to be given to the Farmers and remai....
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....2 in Criminal Misc.Application No. 18334 of 2020 and group matters submitted that the order impugned is correct in so far as directing deposit of amount by the Applicant is concerned and therefore the challenge by the Applicant must necessarily fail. It is submitted that in fact there is severe prejudice and loss caused to the original Complainant due to the Applicants being directed to deposit only 20% of the Cheque amount and not a higher amount linked to the fine which was required looking to the facts and circumstances of the present case. It is further submitted that an Application being a Criminal Miscellaneous Application has been preferred by the Original Complainant before this Hon'ble Court, whereby, the Original Complainant has sought the modification of the order of the Sessions Judge dated 01.10.2020 and to suitably enhance the amount to be deposited by the Applicants-Original Accused as a percentage of the fine or compensation Awarded by the trial Court. 9.1. It is submitted that the observations of this Court in its order dated 31.07.2013 passed in Special Civil Application No. 8894 of 2013 as averred and Interpreted by the Applicants herein in para 2.7 of the....
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.... Provisions of Section 357(2) of CrPC would have no Applicability to the Proceedings under the NI Act and that further the word "may" in Section 148 of the NI Act is to be read as "shall and that a direction not to deposit any amount is an exception for which special reasons are to be assigned. The deponent submits that the Applicant has not brought anything on record to indicate the special reasons why such an order is required to be passed and in fact the facts and circumstances and the conduct of {ne Applicant in fact indicate that the order passed by the Ld. Sessions Judge is in fact required to be enhanced, for which the Respondent No. 2 has already moved an appropriate Application. That on bare interpretation of the prayer of the present Application sought by the Applicants herein, the same is in stark contradiction of Provisions of the NI Act and guidelines laid down by the Apex Court. 10. Having considered the rival submissions of learned Advocates for the parties, the question that comes up for consideration is the order of the Appellate Court with regard to deposit of the amount as provided under Section 148 of the Act. The grounds which have been elaborately argued by....
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....eding thirty days as may be directed by the Court on sufficient cause being shown by the Complainant." 13. The facts which are not in dispute are that the Complainant herein preferred a Criminal complaint against the accused under Section 138 of the Act for a Cheque bearing Cheque No. 35075 for a total amount of Rs. 1,05,00,000/-. The said complaint was registered vide Criminal Case No. 48441 of 2011. Upon completion of trial, the learned 14th Additional Chief Judicial Magistrate was pleased to convict the Respondent No. 2 and 3 vide order and judgment dated 12.03.2020 and the Respondents herein were ordered to undergo 2 years of simple imprisonment and the learned Judge further imposed penalty of Rs. 1,80,00,000/- and in default of payment, the Respondents were directed to undergo more than 3 months of imprisonment. That it was further directed that out of the amount of Rs. 1,80,00,000/- paid by the accused, Rs. 1,50,00,000/- would be paid to the Applicant (Original Complainant) as compensation. Since the learned Trial Court after examining all the Oral as well as Documentary Evidence, was pleased to confirm that the said Cheques in question was with respect to legally enforcea....
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....ency 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, enforceable injustice is caused to the payee of a dishonoured Cheque who has to spend considerable time and resources in Court Proceedings to realise 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 time and money. The Proposed Amendments will strengthen the credibility of Cheques and help Trade and Commerce in general by allowing lending Institutions, including Banks, to continue to extend financing to the productive sectors of the Economy. 3. It is, therefore, proposed to introduce the Negotiable Instruments (Amendment) Bill, 2017 to provide, inter dishonor alia, for the following, namely:- (i) to insert a new Section 143A in the said Act to provide that the Court t....
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....ned senior Counsel appearing on behalf of the Appellants shall not be Applicable to the facts of the case on hand. Therefore, considering the Statement of Objects and Reasons of the Amendment in Section 148 of the N.I. Act stated hereinabove, on purposive interpretation of Section 148 of the N.I. Act as amended, we are of the opinion that Section 148 of the N.I. Act as amended, shall be Applicable in respect of the Appeals against the order of conviction and sentence for the offence Under Section 138 of the N.I. Act, even in a case where the Criminal complaints for the offence Under Section 138 of the N.I. Act were filed prior to Amendment Act No. 20/2018 i.e., prior to 01.09.2018. If such a purposive interpretation is not adopted, in that case, the object and purpose of Amendment in Section 148 of the N.I. Act would be frustrated. Therefore, as such, no error has been committed by the learned first Appellate Court directing the Appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court considering Section 148 of the N.I. Act, as amended. 8. Now so far as the submission on behalf of the Appellants that even considering the language u....
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....y in the Proceedings, an injustice was caused to the payee of a dishonoured Cheque who has to spend considerable time and resources in the Court Proceedings to realize the value of the Cheque and having observed that such delay has compromised the sanctity of the Cheque Transactions, the Parliament has thought it fit to amend Section 148 of the N.I. Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the Amendment in Section 148 of the N.I. Act and also Section 138 of the N.I. Act. 9. Now so far as the submission on behalf of the Appellants realize relying upon Section 357(2) of the Cr.P.C. that once the Appeal against the order of conviction is preferred, fine is not recoverable pending Appeal and therefore such an order of deposit of 25% of the fine ought not to have been passed and in support of the above reliance placed upon the decision of this Court in the case of Dilip. S. Dhanukar (supra) is concerned, the aforesaid has no substance. The opening word of amended Section 148 of the N.I. Act is that "notwithstanding anything contained in the Code of Criminal Procedure.....". Therefore irrespective of the Provisions Han....
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....tion instead directing to deposit 20% of the fine imposed. The Court has also taken into consideration the submission made on behalf of the accused regarding financial inability to arrange for such huge deposits in these Appeals. However, considering the Documents placed on record along with evidence led before the trial Court in the form of deposits, more particularly evidence of accused-Chandrakant D. Patel at Exh. 152, wherein turnover of the Company at the relevant time only with the Complainant Company was to the tune of Rs. 120 crores, which may lead to presume the financial strength of the accused. Over and above, in the pleadings before this Court, nothing has come on record which could establish financial crises which the accused side is facing. The Application Exh. 4 filed under Section 389(3) of the Criminal Procedure Code also does not plead of any grave Financial Difficulties being faced by the accused. The Complainant side has argued to exercise discretion to enhance the amount of pre-Appeal deposit to more than 20% in view of the discretion available under the Provision itself, which provides for minimum of 20% and there being scope of imposing more than 20%. It has ....
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....compensation of Rs.1,30,00,000/- to Kalapi DCP out of the fine of Rs.1,60,00,000 18407/20 19551/20 48427/ Sewang 035220 37,50,000 11.03.20 SI for two years, fine 55,00,000 137/20 11 (old RGP of Rs,70,00,000/-, 18425/20 19553/20 No.653 4/11) in default, SI for three months and compensation of Rs.55,00,000/- to Sewang RGP out of the fine of Rs.,70,00,000/- 48436/ Sewang 035226 50,00,000 11.03.20 SI for two years, fine 75,00,000 138/20 11 (old RGP of Rs,90,00,000/-, No.724 4/11) in default, SI for three months and compensation of Rs.75,00,000/- to Sewang RGP out of the fine of Rs. 90,00,000/- Document 2 18374/20 19553/20 48434/ Kalapi 035076 11 (old CDP No.699 1,68,50,000/- 12.03.20 6/11) 18409/20 19497/20 48439/ Sewang 035240 32,10,000/- 11.03.20 11 (old RGP 18404/20 19499/20 No.770 6/11) 48610/ Sewang 026876 II (old RGP 1,45,00,000/- 11.03.20 No.770 7/11) SI for two years, fine 2,50,00,000/- 136/20 of Rs.3,00,00,000/-, in default, SI for three months and compensation of Rs.2,50,00,000/- to Kalapi D....