Allahabad High Court
Devendra Pratap Singh vs State Of U.P. Thru. Its Secy. Home Deptt. ... on 25 August, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:49908
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/S 482 No. - 6936 of 2025
Court No. - 11
HON'BLE SAURABH LAVANIA, J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the opposite party No.2 and perused the record.
2. Shri Vinod Kumar Tiwari, Advocate has filed his Vakalatnama on behalf of opposite party No.2 which is taken on record.
3. The instant application under Section 482 Cr.P.C. has been filed with following prayer:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned order dated 02/06/2025 passed in Criminal Appeal No. 51/2025 'Devendra Pratap Singh Vs State of UP and Another' currently pending before Learned Sessions Judge, Sultanpur, to the extent of depositing of 40% fine amount, as contained in Annexure-1 to this Petition.
To further direct Learned Appellant court to accept only 20% amount in Criminal Appeal No. 51/2025 'Devendra Pratap Singh Vs State of UP and Another, in the interest of justice."
4. Learned Counsel for the applicant submitted that the opposite party no. 2 filed a complaint U/S 138 of Negotiable Instruments Act, 1881 (in short "N.I. Act") against the applicant bearingComplaint Case No.1656 of 2022, Police Station - Kurvar, District - Sultanpur with allegations that the applicant had given cheques of Rs.1,00,000/- to the opposite party no. 2, however, the said cheques got dishonored.
5. Learned Counsel for the applicant further submitted that the applicant contested the matter before the Trial Court, wherein he got convicted and has been ordered to pay Rs.1,50,000/- alongwith simple imprisonment for 06 months. In case of default of payment of fine, he has been ordered to further undergo simple imprisonment for 15 days. The applicant preferred an appeal under Section 374 Cr.P.C. before the learned Session Judge, Sultanpur, which was admitted vide order dated 02.05.2025 and the applicant was released on bail subject to the deposition of 40% of the fine imposed by the learned trial court.
6. Learned Counsel for the applicant further submitted that the Trial Court without considering the legal and factual aspects of the matter, illegally and erroneously vide impugned judgment and order dated 05.05.2025 convicted the applicant and awarded sentence of 06 months' simple imprisonment U/S 138 of Negotiable Instruments Act 1881 and also imposed fine of Rs.1,50,000/- and in case of non deposition of amount of fine the accused shall serve 15 days' further simple imprisonment.
7. Learned Counsel for the applicant next submitted that against the order of conviction passed by the Trial Court remedy of filing Statutory Appeal is provided to the accused and as such the applicant/accused preferred Statutory Appeal in the court of learned Session Judge, Sultanpur. It is also submitted that the applicant also requested for granting bail.
8. Learned counsel for the applicant submitted that under Section 148(1) of The Negotiable Instruments Act 1881, which has been inserted in the N.I. Act through Negotiable Instruments (Amendment) Act, 2018 (Act No 20 of 2018), it has been provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction U/S 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 U/S 143A.
9. Learned Counsel for the applicant further submitted that in Section 148(2) it has also been provided that the amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant.
10. Learned Counsel for the applicant further submitted that the learned Appellate Court although vide order dated 02.06.2025 has been pleased to admit the appeal and also to allow the Bail Application but by the same order, the appellate court has directed the applicant to deposit 40% of the fine imposed vide impugned order dated 05.05.2025, passed by the Trial Court within a period of 60 days from the date of the order.
11. Learned Counsel for the applicant further submitted that the Appellate Court while passing the impugned order dated 02.06.2025 by which it has only stayed 60% of the fine as imposed by the Trial Court, has failed to consider the Statutory Provisions as enshrined U/S 148(1) & 148 (2) of The Negotiable Instruments Act 1881, which resulted in miscarriage of justice.
12. Learned Counsel for the applicant further submitted that the impugned order dated 02.06.2025 is punitive in nature and is against the settled proposition of law as it is settled propositions of law, that if any appeal is presented by the appellant and the same is admitted by the Appellate Court, in that event it is also obligatory for the Appellate Court to stay the operation of the impugned order under appeal during pendency of the appeal, thus, if any order is challenged and the appeal is pending, one cannot permit a swinging pendulum continuously taking place during pendency of the appeal. He further submitted that by non staying the operation of the impugned order by the Appellate Court, serious far reaching civil consequences may arise and the same may be detrimental to the interest of the applicant/petitioner, for which there is no justification.
13. Learned Counsel for the applicant further submitted that the impugned order dated 02.06.2025 to the extent by which the Appellate Court has declined to grant complete stay order has caused serious prejudice to the applicant and as such the necessity of filing the present petition invoking the inherent jurisdiction conferred under Section 482 Cr.P.C. has arisen, thus, he submitted that it is necessary and expedient in the interest of justice that the operation of the impugned order dated 02.06.2025 passed by the Appellate Court as well as the recovery of fine to the tune of 40% of Rs.1,50,000/- as imposed by the Trial Court may kindly be stayed during pendency of the present case in the Hon'ble Court, otherwise the applicant would suffer an irreparable loss.
14. Learned A.G.A. for the State as well as learned counsel for the opposite party No.2 did not oppose the contentions made on behalf of the applicant as learned Counsel for the applicant has rightly pointed out illegality in the impugned order and has supported his contentions with the laws laid down by Hon'ble the Supreme Court of India and submits that the Appellate Court has failed to consider the statutory provisions as enshrined U/S 148(1) & 148 (2) of The Negotiable Instruments Act 1881, which resulted in miscarriage of justice.
15. Heard learned Counsel for the parties and perused the material placed on record.
16. Before entering into the merits of the case, it would be relevant to discuss Section 148 of The Negotiable Instruments Act 1881, which has been inserted in the N.I. Act through Negotiable Instruments (Amendment) Act, 2018 (Act No 20 of 2018) to provide, inter alia, speedy disposal of cases relating to dishonor of cheques so as to see that due to delay tactics by unscrupulous drawers of dishonored cheques due to easy filing of appeals and obtaining stay in proceedings, injustice caused to payee of dishonored cheque who has spent considerable time and resource in court proceedings to realise value of cheque, thus, having observed that such delay has compromised sanctity of cheque transaction, Parliament thought it fit to amend Section 148 Purposive interpretation of Section 148 would be in furtherance of Objects and Reasons of amendment of Section 148 and also Section 138 of the Negotiable Instruments Act, 1881. Section 148 of The Negotiable Instruments Act 1881, which has been inserted in the Act through Negotiable Instruments (Amendment) Act, 2018 (Act No 20 of 2018) is reproduced hereunder:-
"Section-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 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.
(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."
17. As per Section 148(1) of the Negotiable Instruments Act 1881, which has been inserted in the Act through Negotiable Instruments (Amendment) Act, 2018 (Act No.20 of 2018) it has been provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction U/S 138, the Appellate Court may order the Appellant to deposit such sum which may 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 U/S 143A.
18. As per Section 148(2) it has also been provided that the amount referred to in Sub-section (1) shall be deposited within sixty days from the date of the order, or within such period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant.
19. In the instant case, the Appellate court although vide order dated 02.06.2025 had admitted the appeal and also allowed the Bail Application moved by the applicant/petitioner but by the same order despite admitting the appeal preferred by the applicant/appellant had erroneously ordered to deposit 40% of the fine as ordered vide impugned order dated 02.06.2025 within a period of 60 days from the date of the order, thus, the appellate court while passing the impugned order dated 02.06.2025 by which it has only stayed 60% of the fine as directed vide order dated 02.06.2026 passed by the trial court has failed to consider the Statutory Provisions as enshrined under Section 148(1) and 148(2) of the Negotiable Instrument Act, 1881 as discussed above, which resulted in miscarriage of justice.
20. It is further observed here that the impugned order dated 02.06.2025 passed by the Appellate Court, appears to be punitive in nature and is against the settled proposition of law as it is a settled proposition of law, that if any appeal is presented by the appellant and the same is admitted by the Appellate Court, in that event, it is also obligatory for the Appellate Court to grant interim relief in the appeal during the pendency of the appeal, thus, any order challenged in the appeal and the said appeal was admitted and pending, thus, one cannot permit a swinging pendulum to continue swinging during the pendency of the appeal.
21. The issue involved in this case has broadly been dealt by Hon'ble the Supreme Court of India in the case of Surinder Singh Deswal Alias Colonel S.S. Deswal and Others vs. Virender Gandhi reported in (2019) SCC 341 wherein the Apex Court has been pleased to observe in paragraph No.8, which is reproduced hereinunder:-
"8. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the NI 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 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 ?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 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 the original complainant or even on the application filed by the appellant-accused under Section 389 CrPC to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the NI 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 NI 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 NI 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 NI Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the NI Act and also Section 138 of the NI Act."
22. Further, the Hon'ble Supreme Court in the case of Jamboo Bhandari vs. Madhya Pradesh State Industrial Development Corporation Limited and Others reported in (2023) 10 SCC 446 has been pleased to observe in paragraph No.12, which is reproduced hereinunder:-
"12. In these circumstances, we set aside the impugned orders of the High Court and restore the revision petitions filed by the appellants before the High Court. We direct the parties to appear before the roster Bench of the High Court on 9-10-2023 in the morning to enable the High Court to fix a date for hearing of the revision petitions. As the contesting parties are before the Court, it will not be necessary for the High Court to issue a notice of the date fixed for hearing. The High Court, after hearing the parties, will consider whether 20% of the amount is already deposited or not. If the Court comes to the conclusion that 20% of the amount is not deposited, the Court will re-examine the revision petitions in the light of what we have observed in this judgment. Till the disposal of the restored revision petitions, the interim order passed by this Court ordering suspension of sentence will continue to operate."
23. Thus, in view of the law laid down by the Hon'ble Supreme Court and the facts and circumstances, as narrated above and from the perusal of the record, the impugned order dated 02.06.2025 passed by learned Session Judge, Sultanpur in Criminal Appeal No.51 of 2025 (Devendra Pratap Singh Vs. State of U.P. and Another) to the extent by which the learned Appellate Court despite admitting the appeal has also ordered to pay 40 % of the fine imposed by the learned trial court within 60 days, is against the spirit and directions issued by the Hon'ble Supreme Court of India.
24. Keeping in view the discussions made above and the laws settled by Hon'ble the Supreme Court of India, referred above, this Court finds that the Appellate Court has erred in law while ordering to pay 40% of the fine imposed by the learned trial court while convicting him under Section 138 of the Negotiable Instruments Act, 1881 till the disposal of the appeal preferred by the appellant/applicant before the Appellate Court. Thus, this Court deems it appropriate to dispose of this application under Section 482 Cr.P.C. with modification of the impugned order dated 02.06.2025 to the extent that the applicant is directed to deposit 20% of the fine imposed upon him by the trial court within sixty days' from the date of this judgment. It is permitted that the bail already granted by the Appellate Court to the applicant vide order dated 02.06.2025 shall continue till the disposal of the appeal pending before the Appellate Court i.e. learned Session Judge, Sultanpur bearingCriminal Appeal No.51 of 2025 (Devendra Pratap Singh Vs. State of U.P. and Another) with same terms and conditions as imposed by the Appellate Court while granting him bail Except the modification aforesaid.
25. It is hereby made clear that if 20% of the fine imposed is not deposited by the applicant within the period of sixty days from the date of this judgment, then the bail already granted by the Appellate Court concerned shall stand automatically cancelled.
26. With the above observations/directions, the present application under Section 482 Cr.P.C. is finally disposed of.
27. Let a copy of this judgment be communicated to the Appellate Court concerned for its immediate compliance, forthwith by the office of the Senior Registrar of this Court.
August 25, 2025
ML/-
