TaxTMI 
TaxTMI 
2022 (1) TMI 754
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....0% of the cheque amount with the Nazir of the District Court, Rajkot on or before 16.03.2019. 3. The facts in brief, as emerging from the impugned complaint, are that the applicant herein and respondent-complainant (now represented by his legal heir) had shared friendly relations for a long period. In 2013, the applicant borrowed Rs. 19 Lacs from the respondent-complainant for purchasing a residential flat by way of (i) Cheque No.223603 dated 18.11.2013 drawn on Rajkot Nagarik Sahkari Bank for Rs. 8,90,000/- and (ii) Cheque No.223694 dated 09.12.2013 drawn on the same Bank for Rs. 10,00,000/- and (iii) Rs. 10,000/- in cash, totalling Rs. 19,00,000/-. The respondent-complainant had given the said amount on an assurance by the applicant that the entire amount would be returned within two years. When the respondent-complainant demanded such amount on expiry of the above period, the applicant issued two cheques (i) Cheque No.903380 dated 04.07.2016 for Rs. 10,00,000/- and (ii) Cheque No.000001 dated 04.07.2016 for Rs. 9,00,000/-. The respondent-complainant deposited the said cheques in his Bank; however, both the cheques were returned on 05.07.2016 with the endorsement of "insuffici....
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....38 of the N.I. Act is two years. The applicant is a small trader and the condition imposed by the Sessions Court would cause great hardships to him. He vehemently submitted that the right to appeal provided under Section 374 of Cr.P.C. is a substantive right and that it could not have been restricted by directing the applicant-appellant to deposit 30% of the cheque amount as a precondition for suspending sentence pending the appeal. 4.2 In support of his submissions, learned advocate Mr. Baxi placed reliance upon a decision of the Apex Court in case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr., (2007) 6 SCC 528, wherein it has been observed thus: "A statute must be read harmoniously. An amount of compensation directed to be paid may not form part of a fine. It may be awarded separately. It may be recoverable as if it is a fine in terms of Section 431 of the Code but by reason thereof it would not become automatically recoverable forthwith. The legal position, however, must be considered keeping in view the purport and object of the Act. An appeal is indisputably a statutory right and an offender who has been convicted is entitled to avail the right o....
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....ition to fulfill the said condition, and therefore, the said condition is too harsh. The Sessions Court while suspending the sentence could not have imposed such a condition, which is not possible for the accused to comply. If the accused is unable to comply with the said condition, the result would be that the said accused has to be sent to jail for non-fulfilment of the said condition, and therefore, the condition imposed by the Sessions Court of depositing 25% of the cheque amount is required to be quashed and set aside." 5. Learned advocate Mr. Baxi further submitted that the Sessions Court has ordered deposit of 30% of the cheque amount as a condition for suspending the judgment and order of conviction and sentence in purported exercise of powers under Section 148 of the N.I. Act. He emphasized that the said provision came into being on 01.09.2018 whereas, the criminal case under Section 138 of the N.I. Act was instituted much prior thereto, i.e. in 2016 and therefore, the amended provision of Section 148 could not be made applicable to the case instituted in the year 2016. 5.1 It is contended by learned advocate Mr. Baxi that when the section itself, i.e. Section 148 of....
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....d as per the Report, the Police could not find any legal heirs of deceased in the nearby locality. The police has recorded the statement of witness Babubhai Naranbhai Dangar and Salimbhai Hasambhai Sahamdar, both residents of Rajkot, to verify the said aspect. Let the police place on record the details from Rajkot Nagrik Sahakari Bank of Account No.015003100003233. List the matter on 13.08.2021." 9. On 13.09.2021 the following order was passed by this Court: "The report of the police dated 22.08.2021 in compliance of the order dated 20.07.2021 is placed on record by learned APP Ms. Monali Bhatt, and as per the report of the Police Inspector, "A" Division Police Station, Rajkot City, the account is running in the name of Pushpaben Lalitkumar Sagar and Hiren Lalitbhai Sagar alongwith respondent No.2 Paresh Lalitbhai Sagar who is stated to have died on 18.11.2019. Let the compliance be made for bringing the legal heirs on record. List the matter on 28.09.2021." 10. It appears that no application was filed for bringing the legal heirs of deceased-respondent, original complainant, on record in spite of the above order. Thereafter, when the matter was listed before this Co....
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....therefore, submitted that the present application is devoid of merits and deserves to be rejected. 12. Heard learned advocates on both the sides. Before we advert to the merits of the case, a reference to the provision of Section 148 of the N.I. Act is apposite. ''148. Power of Appellate Court to order payment pending appeal against conviction.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 143A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the com....
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....section 138 may order the drawer of the cheque to pay interim compensation to the complainant, in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and in any other case, upon framing of charge. The interim compensation so payable shall be such sum not exceeding twenty per cent. of the amount of the cheque; and (ii) to insert a new section 148 in the said Act so as to provide that 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. 4. The Bill seeks to achieve the above objectives." 14. From the Statement of Objects and Reasons, it is clear that the amendment was brought in to address the issue of undue delay in final resolution of cheque dishonor cases so as to provide relief to payees of dishonored cheques and to discourage frivolous and unnecessary litigation. It was thought fit to amend Section 148 of the N.I. Act as it was found that the object and purpose of enactment of Section 138 was being frustrated on account of the delay t....
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....ble time and resources in the Court proceedings to realize the value of the cheque. Therefore, as such, no error could be said to have been committed by the Sessions Court by directing the applicant-accused to deposit certain percentage of the amount of compensation as the said direction is in consonance with the Statement of Object and Reasons of the amendment of Section 148 of the N.I. Act. Hence, the decision rendered in the case of Dilip Dahanukar's case (supra) would not apply to the case on hand. 16. In Satyendra Kumar Mehra @ Satendera v. The State of Jharkhand (2019) 1 SCC (Cri.) 831, the Apex Court observed thus : "34. ... The appellate Court while exercising power under Section 389 Cr.P.C. can suspend the sentence of imprisonment as well as of fine without any condition or with conditions. There are no fetters on the power of the Appellate Court while exercising jurisdiction under 389 Cr.P.C. The Appellate Court could have suspended the sentence and fine both or could have directed for deposit of fine or part of fine." 17. In Surinder Singh Deswal @ Colonel S. S. Deswal and others v. Virender Gandhi, (2019) 11 SCC 341, the Apex Court held as under: ....
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....substance and cannot be accepted, as by amendment in Section 148 of the N.I. Act, no substantive right of appeal has been taken away and/or affected. Therefore, the decisions of this Court in the cases of Garikapatti Veeraya (supra) and Videocon International Limited (supra), relied upon by the learned 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 l....
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....tion by the appellant-accused in an appeal preferred against conviction under Section 138 of the N.I. Act. In other words, the amended provision confers powers upon the appellate Court to issue direction to the appellant-accused to deposit a sum, which shall not be less than 20% of the fine amount or compensation, either on an application filed by the original complainant or on the application filed by the appellant-accused under Section 389 of Cr.P.C. in the pending appeal and such power could be exercised notwithstanding anything contained in the Cr.P.C. In this case, the applicant-accused has been ordered to pay compensation of Rs. 19 Lacs by the trial Court, which, of course, is equivalent to the cheque amount and thus, to that effect, the provisions of Section 357(2) of Cr.P.C. would not apply to the present case. However, there is an error in the nomenclature adopted by the Sessions Court while passing the order dated 25.02.2019 inasmuch as the applicant-appellant has been directed to deposit 30% of the "cheque amount" instead of the amount of "fine" or "compensation", which is the term used in the provision of Section 148 of the N.I. Act. Hence, the terminology used by the S....