2021 (9) TMI 378

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....spondent No.1 under Section 138 of the Negotiable Instruments Act. The concerned Magistrate conducted a trial during which the respondent No.1 disputed his guilt, however, did not dispute his signature on the cheque. The learned Magistrate decided the criminal case by a judgment dated 12.02.2020 by which the respondent No.1 original accused was convicted for offence punishable under Section 138 of the Negotiable Instruments Act. He imposed a sentence of simple imprisonment of one year and ordered the accused to pay fine of Rs. 10,00,000/- out of which Rs. 8,00,000/- would be paid to the complainant towards the cheque amount with interest. 3. The accused challenged the said judgment of the Magistrate before the Sessions Court. This appeal was admitted on 27.02.2020. On the same date the Sessions Court also passed an order suspending the sentence without imposing any condition on the accused. Significantly, this order was passed without any notice to the complainant. The complainant received the notice of admission of appeal on 08.03.2020. According to him, however, soon thereafter there was a nationwide lockdown and on account of which he could put up his appearance before the Se....

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..... One can take judicial notice of the fact that within a short period thereafter on or around 23.03.2020, to avoid spread of coronavirus there was a nationwide lockdown making movement of persons extremely difficult. The situation continued for a long time till around in the month of August and September, 2020 partial normalcy returned. If, therefore, the petitioner could enter his appearance in the appellate Court on 20.08.2020 and thereafter moved an application for depositing the amount in terms of Section 148 of the Negotiable Instruments Act on 17.11.2020, his approach cannot be stated to be lethargic. 7. The appeal was admitted ex parte so was the request for suspension of sentence granted, both on the same day. Surely the petitioner the complainant of a cheque bouncing, cannot be deprived of the benefit of a statutory provision on account of admission of the appeal and suspension of the sentence without hearing the complainant. 8. Section 148 of the Negotiable Instruments Act was inserted w.e.f. 01.09.2018 and reads as under: "148. Power of Appellate Court to order payment pending appeal against conviction.-(1) Notwithstanding anything contained in the Code of....

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.... Section 148 of the N.I. Act as amended, the appellate Court "may" order the Appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court and the word used is not "shall" and therefore the discretion is vested with the first appellate court to direct the Appellant - Accused to deposit such sum and the appellate court has construed it as mandatory, which according to the learned Senior Advocate for the Appellants would be contrary to the provisions of Section 148 of the N.I. Act as amended is concerned, considering the amended Section 148 of the N.I. Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the N.I. Act, though it is true that in amended Section 148 of the N.I. 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 N.I. 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 fi....

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..... In other words, depositing the amount is not a precondition for admission of the appeal. Admission of appeal would depend on the appellant making out a prima facie case. The direction for depositing the amount in terms of subsection (1) of Section 148 would depend on the facts and circumstances of the case. The Supreme Court in case of Surinder Singh Deswal (supra) has stressed upon the requirement of giving purposive interpretation to the said provision utilizing the powers to ensure that there is no dilatory tactic employed by the drawer of the cheque. Even if the Supreme Court has not gone to the extent of holding that the word "may" used in sub-section (1) of Section 148 would be read as "shall", nevertheless there is a clear intention discernible in the judgment of the Supreme Court that such provision should be utilized in appropriate cases. 12. Merely because the Court had passed the orders suspending the sentence on a petition filed by the accused, that too without hearing the complainant, again would not be a ground to frustrate the petition of the drawee of the cheque for giving directions in terms of sub-section (1) of Section 148 of the Negotiable Instruments Act. ....