Andhra Pradesh High Court - Amravati

Inaganti Gandhi, vs Mullapati Malkondaiah, on 8 January, 2024

           THE HONBLE Ms. JUSTICE B.S.BHANUMATHI

               Criminal Petition No. 3048 of 2023
ORDER:

This criminal petition under Section 482 CrPC is filed to quash

the order, dated 27.03.2023, passed in Crl.M.P.No.22 of 2023 in

Criminal Appeal No.66 of 2023 on the file of the Court of IV

Additional Sessions Judge, at Nellore.

2. Heard Sri Narasimha Rao Gudiseva, learned counsel for the

petitioner and Sri Ancha Panduranga Rao, learned counsel for the

1st respondent/complainant.

3. The facts leading to filing of the petition, are briefly as

follows:

The petitioner is the accused in C.C.No.402 of 2017 on the file

of the Court of II Additional Judicial First Class Magistrate, Nellore,

filed by the 1st respondent herein under Section 138 of the

Negotiable Instruments Act, 1881. Pending the case, the accused

filed petition in Crl.M.P.No.135 of 2022 to send exhibits P1 to P5,

cheques, to a handwriting expert for opinion. The petition was

dismissed by order, dated 16.12.2022. Aggrieved by the order, the

accused preferred criminal revision in C.R.P.No.3 of 2023 on the file

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of the Court of IV Additional Sessions Judge, Nellore. The petition

was dismissed on 20.02.2023.

4. Aggrieved by the said order, criminal petition in Crl. Petition

No.1504 of 2023 was filed before this Court. An interim order was

passed by this Court on 27.02.2023 granting stay of all further

proceedings including appearance of the petitioner before the trial

Court in C.C.No.402 of 2017 for a period of eight (8) weeks.

According to the petitioner/accused, the said order was informed to

the trial Court and a memo was filed on 01.03.2023 along with

'online daily status information' which indicated in column of 'Short

Order' - 01 Notice stay'. On the said memo, the trial Court passed

an order on 01.03.2023 which reads as follows:

"Heard both sides. Perused the record. The matter in C.C.No.402/2017 was posted for judgment on 25-01-2023, but this Court received official memo on 24-01-2023 from the Hon'ble IV Additional District & Sessions Court, Nellore asked entire record in Crl.M.P.No.135/2022 in this case. Hence, this Court not pronounced judgment and posted time to time. Finally, this Court received record on 27-02-2023 and posted today for judgment as the matter is of 2017. On perusing the memo filed by the petitioner/accused that he preferred revision, but no stay granted by Hon'ble High Court of A.P., hence this Court felt that it is not necessary to stop the proceedings and inclined to go further. Accordingly, the memo is closed/ answered in the interest of justice."

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5. In spite of information regarding the stay granted by this

Court, the trial Court pronounced the judgment on 01.03.2023 by

convicting the petitioner. Hence, the accused preferred an appeal,

vide Criminal Appeal No.66 of 2023 along with which he also filed

Crl.M.P.No.22 of 2023 seeking to suspend the operation of the

sentence imposed in C.C.No.402 of 2017. The appellate Court, vide

order dated 27.03.2023, suspended the operation of the sentence

alone subject to condition of depositing 20% of Rs.70,00,000/- on

or before 27.04.2023.

6. Aggrieved by the condition to deposit 20% of the amount, the

petitioner/accused filed this petition contending that the said

condition is onerous and it ought not to have been ordered.

7. The learned counsel for the petitioner submitted mainly that

the condition to deposit is not mandatory and is discretionary as can

be seen from the language of Section 148 of the Negotiable

Instruments Act and it is only if the Court decides to impose such

condition, the minimum amount to be ordered for deposit is 20%,

but the appellate Court failed to exercise its discretion in the light of

the facts and circumstances in this case, because the judgment of

the trial Court is unsustainable in view of the order of stay granted

by this Court.

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8. On the other hand, the learned counsel for the 1st respondent

submitted that a judgment passed in the absence of communication

of the order of stay is valid and placed reliance on the decision in

Seva Singh Vs. State1. He further submitted that there is no

communication of order of stay in the present case as is evident

from the order on the memo and therefore, the appellate Court is

not in error in directing to deposit 20% of the compensation

amount.

9. Since this petition is against the order directing deposit of the

amount by exercising jurisdiction under Section 148 of the

Negotiable Instruments Act, this Court is not inclined to examine

the prayer whether the judgment passed by the trial Court is legal

or not.

10. Section 148 of the Negotiable Instruments Act, 1881 reads as

under:

"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.

[1953] THE INDIAN LAW REPORTS 206

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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 case 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."

11. A perusal of the above provision in Section 148(1) indicates

that it is the discretion of a Court in appeal to direct deposit of the

amount since the word 'may' is used before the words 'order the

appellant to deposit' and it is only if it decides to direct deposit of

the amount, it is mandatory to direct 20% of the compensation

amount. Whenever a court exercises discretion, reasons for the

decision taken shall be recorded. Therefore, before passing any

order under Section 148 of the Negotiable Instruments Act, the

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appellate Court is required to indicate the reasons for exercise of its

discretion.

12. In the present case, since there is a serious dispute about the

legality of the judgment passed by the trial Court while the order of

stay was in force and the same is yet to be decided, the appellate

Court is expected to give reasons as to why in spite of such ground

taken in appeal, it is required to deposit the amount under Section

148 of the Act. But, the appellate Court in its brief order, merely by

referring to Section 148(1) of the Act, directed the petitioner to

deposit 20% of the compensation amount ordered by the trial

Court. It is pertinent to mention the relevant portion of the order at

paragraphs No.6 & 7 which are as follows:

"6. In view of Amendment of Negotiable Instruments (Amendment) Act, 2018 (No.20 of 2018), dated 2.8.2018, Negotiable Instruments (Amendment) Act, 2015 (Act No.26 of 2015) (w.e.f 15.6.2015) under Section 148(1), Appellate Court has power to order payment pending appeal against conviction, since section reads "Not withstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer against conviction under Section 138, appellate Court may order appellant to deposit such sum which shall be a minimum of twenty percent of the fine or compensation awarded by the trial Court." Considering the same, sentence alone imposed by trial Court is suspended.

7. In the result, petition is allowed by suspending the operation of sentence alone till disposal of the main appeal as

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imposed by the trial Court subject to deposit of 20% of the compensation amount into trial Court i.e.,20% out of Rs.70,00,000/- on or before 27-04-2023. Failing which, the appellate Court will proceed as per law. "

13. Therefore, it is apparent that the appellate Court has failed to

give reasons in support of its order and probably under the

impression that it is mandatory to direct deposit of amount, passed

the impugned order. Time and again, the Constitutional courts

held that giving reasons is the backbone of an order for its

sustenance. Yet, there are many instances where Courts fail to

record reasons making the order under challenge vulnerable for

interference.

14. As such, for the above reasons, the impugned order needs to

be set aside directing the appellate Court to dispose of the petition

afresh.

15. In the result, the Criminal Petition is allowed. The order,