Andhra Pradesh High Court - Amravati
J.Venkateswara Rao vs A.Samba Murthy on 22 April, 2024
APHC010085712019
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3330]
(Special Original Jurisdiction)
MONDAY ,THE TWENTY SECOND DAY OF APRIL
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CRIMINAL PETITION NO: 1811/2019
Between:
J.venkateswara Rao ...PETITIONER/ACCUSED
AND
A Samba Murthy and Others ...RESPONDENT/COMPLAINANT(S)
Counsel for the Petitioner/accused:
1. NARASIMHA RAO GUDISEVA
Counsel for the Respondent/complainant(S):
1.
2. PUBLIC PROSECUTOR (AP)
The Court made the following:
ORDER:
The present criminal petition has been filed for quashing the proceedings dated 25.02.2019 in Crl.M.P.No.21 of 2019 in Crl.A.No.102 of 2019 on the file of the Court of the LRAT-cum-II Additional District and Sessions Judge, Eluru, West Godavari District.
2. On perusal of the record, it appears that the 1st respondent in the criminal petition has filed C.C.No.116 of 2017, on the file of learned Judicial Magistrate of First Class, Special Mobile Court, Eluru, seeking to punish the petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity „the N.I.Act‟). The learned Magistrate by an order dated 07.02.2019, found that the accused was guilty for the offence punishable under Section 138 of the N.I.Act and he was sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs.5000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of three months.
23. Aggrieved by the order dated 07.02.2019 passed in C.C.No.116 of 2017, the petitioner/accused filed Crl.A.No.102 of 2019 and also Crl.M.P.No.21 of 2019, under Section 389(1) of the Code of Criminal Procedure, 1973, on the file of the LRAT-cum-II Additional District and Sessions Judge, Eluru, East Godavari District, for suspension of sentence imposed by the learned Magistrate.
4. While suspending the sentence passed in C.C.No.116 of 2017, the learned Sessions Judge by an order dated 25.02.2019, imposed a condition directing the petitioner/accused to deposit 20% of the cheque amount i.e., Rs.80,000/-, within one month from the date of the order.
5. Assailing the order passed in Crl.M.P.No.21 of 2019, the present criminal petition is filed on the ground that imposing a condition of depositing 20% of the cheque amount is onerous and relied on the order of this Court dated 08.01.2024 passed in Crl.P.No.3048 of 2023, for the proposition that, while suspending the sentence the learned Sessions Judge has not assigned any reasons. Therefore, the order impugned is liable to be set aside.
6. In this regard, it is appropriate to quote Section 148 of N.I.Act, which reads thus:
"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 percent 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.3
(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 complainant at any time during the pendency of the appeal.
Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, 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 complainant."
7. On perusal of Section 148(1) of the N.I.Act, it indicates that the Appellate Court may order the accused to deposit, such sum shall be a minimum of 20% of the fine or compensation awarded by the trial Court.
8. In Surinder Singh Deswal v. Virender Gandhi1, the Hon'ble Apex Court while considering the provisions of Section 148 of the N.I. Act, in light of the above aims and objects, for its enactment, and whether the said provision was prospective or retrospective, it was held 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 20 of 2018 i.e. prior to 1/9/2018. Insofar as the issue as to whether the same was mandatory or directory, considering the use of the word 'may', as occurring therein, held as under :
"Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the N.I.Act as amended, the appellate court "may" order the appellant 1 (2019) 11 SCC 341 4 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 the 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 fine or compensation either on an application filed by the original complainant or even on the application filed by the appellant- accused under Section 389 Cr.P.C to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the N.I.Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the appellant. Therefore, if amended Section 148 of the N.I.Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the NI Act, but also Section 138 of the N.I.Act. The Negotiable Instruments Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of the dishonour of cheques. So as to see that due to delay tactics by the unscrupulous drawers of the dishonoured cheques due to easy filing of the appeals and obtaining stay 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 realise the value of the cheque and having observed that such delay has compromised the sanctity of the cheque transactions, 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.
Accordingly it is submitted by the learned counsel for the petitioner the word "may" in Section 148(1) NI Act be read as "shall" and that the respondent needs to be directed to deposit an amount equivalent to 20% of the fine amount and such amount 5 ought to have been released in favour of complainant with interest as the complainant is squarely covered underSection 148(3) NI Act."
9. On perusal of the judgment of the Hon‟ble Apex Court it indicates that, not to direct to deposit or to deposit less than the 20% by the appellate Court is an exception for which special reasons are to be assigned.
10. This Court is not disagreeing with the order dated 08.01.2024 passed in Crl.P.No.3048 of 2023. When the Court inclines to direct the accused to deposit the amount less than 20% of the cheque amount, then only the Court has to assign reasons for imposing such less amount.
11. Therefore, this Court is not inclined to meddle with the order passed in Crl.M.P.No.21 of 2019 in Crl.A.No.102 of 2019 and hence, the Criminal Petition is dismissed.
As a sequel, miscellaneous petitions, if any, pending in this Criminal Petition shall stand closed.
__________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date:22.04.2024 KBN 6 36 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO CRIMINAL PETITION No.1811 OF 2019 Date:22-04-2024 KBN