Ram Milan Gupta vs State Of U.P. And Another
2025 Latest Caselaw 6291 ALL

Allahabad High Court

Ram Milan Gupta vs State Of U.P. And Another on 20 March, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:40715
 
Court No. - 73
 
Case :- APPLICATION U/S 528 BNSS No. - 8374 of 2025
 
Applicant :- Ram Milan Gupta
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ravindra Kumar Yadav,Sandeep Kumar Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

Criminal Misc. Amendment Application No. Nill of 2023

1. Since there is no objection to the same by the learned AGA, amendment application stands allowed.

2. Accordingly, amendment application is allowed.

3. Let the amendment be carried out during the course of the day.

Order on Application U/S 528 BNSS

1. Heard Sri Yaspal Yadav, advocate holding brief of Shri Sandeep Kumar Yadav, learned counsel for the applicant and Sri S.P. Singh, learned State Law Officer for the State.

2. In view of the order, which is being proposed to be passed today, notices are not being issued to the respondent No. 2. However, in the interest of the opposite party no. 2 is safeguarded

3. This application under Section 528 BNSS has been filed by the applicants to quash order dated 17.11.2023 passed by learned Session Judge, Azamgarh in Criminal Appeal No. 92 of 2023 (Ram Milan Vs. Vishwanath Pandey) insofor as it relates to payment of Rs. 3,00,000/- in place of 20% of compensation amount and order dated 05.11.2024 passed by ASJ/FTC, Court No. 1 on application dated 28.10.2024, whereby directing to applicant to pay Rs. 1,20,000/- and 1.8 lacs in two installment in two months in Criminal Appeal No. 92/2023 (Ram Milan Vs. Vishwanath Pandey) arising out of Judgment and order dated 30.10.2023 passed by learned trial court in complaint case no. 3973/2023 (Vishwanath Pandeyy Vs. Ram Milan Gupta) U/s 138 N.I. Act, Police Station Pawai, District Azamgarh

4. Learned counsel for the applicant has made a statement at bar as per the instructions received by him that he is not confining his relief to the challenge to the order dated 05.11.2024 passed by ASJ/FTC, Court no. 1, on application dated 28.10.2024 directing the applicant to pay Rs. 1,20,000/- and Rs. 1,80,000/- in two installments in two months in Criminal Appeal No. 92 of 2023.

5. Learned counsel for the applicant submitted that the opposite party no. 2 filed a complaint in the year 2021 against the applicant under Section 138 of the N.I. Act read with Section 420 and 506 IPC referable to dishonor of a cheque. The Court of Civil Judge (S.D.), FTC/ Additional Chief Judicial Magistrate, Azamgarh passed the judgment and conviction order dated 30.10.2023, by which the applicant was convicted for one year simple imprisonment and awarded compensation to the tune of Rs. 6,00,000/- in favour of the opposite party no. 2 and in default of the payment of the aforesaid compensation, two months additional imprisonment was ordered. Against the judgment and order dated 30.10.2023, the applicant preferred a criminal appeal on 16.11.2023 under section 374 Cr.P.C. The appellate court, Special Judge, Azamgarh by virtue of the order dated 17.11.2023 admitted the appeal and released the applicant on bail with the condition of deposit of an amount of Rs. 3,00,000/-, thereafter the applicant filed an application dated 28.10.2024 before the Court of learned Additional Sessions Judge/ FTC-I, Azamgarh with a request for permitting the applicant to deposit an amount of Rs.1,20,000/- out of compensation of amount of Rs. 6,00,000/- awarded by the trial court. On 05.11.2024, on the said application, the Additional Sessions Judge/ FTC-I Azamgarh proceeded to pass an order directing the applicant to deposit an amount of Rs.1,20,000/- and then Rs. 1,80,000/- within two months.

6. Questioning the order dated 05.11.2024 insofar as it required the applicant to deposit the total amount in two installments i.e. Rs. 1,20,000/- and Rs. 1,80,000, the present application has been filed.

7. Learned counsel for the applicant has submitted that in view of the provisions contained under Section 148 of the N.I. Act, 1881, now a specific provision has been made referable to the power of the appellate court to order, payment, pending appeal against conviction. According to the learned counsel for the applicant in an appeal preferred by the drawer against the conviction under Section 138 of the N.I. Act, the appellate court may order, applicant to deposit such sum which may be a minimum of 20% of the fine or composition awarded by the trial court but the said amount payable under the sub-section shall be in addition to any interim compensation provided by the applicant under section 143-A of the N.I. Act. Learned counsel for the applicant has relied upon the judgment of the Hon'ble Apex Court in the case of Surinder Singh Deswal @ Col. S.S. Deswal & others v. Virendra Gandhi; 2019 (3) SCC (Cri) 461 and a judgment of the coordinate Bench in Ravi Kumar Shukla v. State of U.P. and another reported in 2024 (0) Supreme (All) 659.

8. Prayer in the present application is for setting aside of the order and for directing the court below to comply with the provisions contained under Section 148 of the N.I. Act.

9. Learned State Law Officer on the other hand submits that though the requirement of deposit of the compensation in a pending appellate proceedings should be minimum of 20% of the amount of fine or compensation awarded by the trial court but according to him, here the said aspect has not been considered but the entire amount has been directed to be deposited. He submits that the order be set aside and the matter be remitted back to pass a fresh order.

10. I have heard learned counsel for the parties and gone through the records carefully.

11. Section 148 of N.I. Act, reads as under:

"Section 148: Power of Appellate Court to order payment pending appeal against conviction.

148. (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 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."

12. Perusal of Section 148 of the N.I. Act itself specifies the power of appellate court to order payment pending appeal against the conviction. Here, in the present case, there happens to be an order of conviction passed against the applicant and the applicant in turn has preferred an appeal in which he has been accorded bail. However, on an application so preferred by the applicant to deposit an amount of Rs. 1,20,000/- out of the compensation of Rs. 6,00,000/- awarded by the trial court, now by virtue of an order so sought to be transcribed in the application preferred by the applicant, the applicant has been directed to deposit of Rs. 1,20,000/- at the first instance and after two months, Rs. 1.80,000 be deposited. Though sub-Section (1) of Section 148 of the N.I. Act itself provides for deposit of compensation pending appeal which shall be minimum of 20% of the fine of compensation awarded by the trial court but in case, there happened to be any special circumstances for deposit of compensation beyond 20% then at least some reasons ought to have been accorded so as to show application of mind and the satisfaction of the court below. The same is the view in the case of Surinder Singh Deswal @ Col. S.S. Deswal & others v. Virendra Gandhi (supra) and Ravi Kumar Shukla (supra), thus, in the fitness of matter, the order dated 05.11.2024 passed in the application preferred by the applicant on 28.10.2024 which is on record at page 62 of the paper book (Annexure-5), reference whereof has been given in para 9 is set aside the matter and the matter be remitted back to the Court below to pass a fresh order strictly in accordance with law.

13. Accordingly, the present application U/S 528 BNSS stands partly allowed.

Order Date :- 20.3.2025

A. Prajapati