TaxTMI 
TaxTMI 
2022 (9) TMI 893
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....rds the said transaction. On the cheque being dishonoured, proceedings were instituted by the complainant invoking Section 200 of the Cr.P.C. in C.C. No. 3022/2013. The learned Magistrate convicts the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') and imposes a fine amount of Rs. 5,20,000/-. The petitioner prefers an appeal in Crl.A. No. 150005/2022 against the said order, before the learned Sessions Judge. The learned Sessions Judge by his order dated 29.03.2022, suspends the sentence subject to the petitioner herein depositing 20% of the fine amount before the trial Court within 60 days from the date of the said order. The period of 60 days from the date of the order i.e., 29.03.2022, would get over on 22.05.2022. The petitioner prefers the subject petition challenging the said condition of deposit of 20% of the fine amount. Though the said condition was stayed, the petitioner has not shown any bona fides of making efforts to deposit the amount so directed. 4. Learned counsel for the petitioner seeks to submit on the merit of the matter with regard to the condition that is stipulated for such deposi....
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....etion is available to the learned Sessions Judge to direct deposit of appropriate amount and exercising such discretion, the appellate Court has directed deposit of 10%. Therefore, the petitioner has no right to seek modification of the said order. 6. I have given my anxious consideration to the submissions made by the petitioner and the learned counsel for the respondent and perused the material on record. 7. To consider the issue in the petition it is germane to notice Section 148 of the Act. One of the amendment that was brought about was to Section 148 of the Act by Act 20 of 2018 by way of insertion. Section 148 of the Act as it stands today reads as follows: "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 in....
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....ion awarded during the pendency of the trial. Therefore, the word 'may' will have to be read as 'shall' as the statute does not confer any discretion to reduce the minimum from 20%. This has to be deposited within 60 days extendable by 30 days on sufficient cause being shown. Therefore, there can be no extension also that could be granted by the learned Sessions Judge for deposit of the amount. Sub-section (3) of Section 148 confers discretion on the Appellate Court for directing release of the amount deposited by the appellant in favour of the complainant as the words deployed are 'the Appellate Court may direct' and 'at any time during the pendency of the appeal'. The statute therefore here vests/confers such discretion upon the appellate Court for directing payment to the complainant and refund of the amount in the event of acquittal should also be done within an outer limit of 60 days extendable by 30 days on sufficient cause being shown by the complainant. Therefore, for deposit and refund there is no discretion conferred by the statute for the concerned Court for extension beyond, 90 days in each case. It is the aforesaid interpretation that is....
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....on proceedings. As a result of this, 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 alia, for the following, namely- (i) to insert a new Section 143-A in the said Act to provide that the court trying an offence under 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 guilt....
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....oted that at the time when the appeals against the conviction of the appellants for the offence under Section 138 of the NI Act were preferred, Amendment Act 20 of 2018 amending Section 148 of the NI Act came into force w.e.f. 1-9-2018. Even, at the time when the appellants submitted application(s) under Section 389 CrPC to suspend the sentence pending appeals challenging the conviction and sentence, amended Section 148 of the NI Act came into force and was brought on statute w.e.f. 1-9-2018. Therefore, considering the object and purpose of the amendment in Section 148 of the NI Act and while suspending the sentence in exercise of powers under Section 389 CrPC, 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 NI Act. 7.1. Having observed and found 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 N....
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....nded, 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 NI Act as amended is concerned, considering the amended Section 148 of the NI Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the NI Act, though it is true that in the amended Section 148 of the NI Act, the word used is "may", it is generally to be construed as a "rule" or "shal" 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 NI 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 fine or compensation either on an application filed by ....
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....efore the first appellate court, challenging the order of conviction and sentence under Section 138 of the NI Act, the appellate court is conferred with the power to direct the appellant to deposit such sum pending appeal which shall be a minimum of 20% of the fine or compensation awarded by the trial court. 10. In view of the above and for the reasons stated hereinabove, the impugned judgment and order [Surinder Singh Deswal v. Virender Gandhi, 2019 SCC Online P&H 746] passed by the High Court does not call for any interference. 11. At this stage, the learned Senior Advocate appearing on behalf of the appellants has requested to grant the appellants some more time (three months' time) to deposit the amount as per the order passed by the first appellate court, confirmed by the High Court. The said prayer is opposed by the learned Advocate appearing on behalf of the original complainant. It is submitted that as per amended Section 148 of the NI Act, the appellant-accused have to deposit the amount of compensation/fine as directed by the appellate court within a period of 60 days which can be further extended by a further period of 30 days as may be directed by ....