Andhra Pradesh High Court - Amravati

Chittiboyina Eswara Rao, vs The State Of Andhra Pradesh, on 4 October, 2024

APHC010422232024

                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI               [3396]
                           (Special Original Jurisdiction)

                   FRIDAY, THE FOURTH DAY OF OCTOBER
                    TWO THOUSAND AND TWENTY FOUR

                       PRESENT
     THE HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI
                      PRATAPA

                     CRIMINAL PETITION NO: 6780/2024

Between:

   1. CHITTIBOYINA ESWARA RAO,, S/O. BABURAO, DOOR NO.22-
      73-5/1, SEETHA    RAMA SWAMY TEMPLE STREET,
      KANAKAMAHALAKSHMI     GUDI,    READING         ROOM,
      VISAKHAPATNAM CITY.
                                     ...PETITIONER/ACCUSED

                                  AND

   1. THE STATE OF ANDHRA PRADESH, BY ITS PUBLIC
      PROSECUTOR, HIGH COURT OF ANDHRA PRADESH AT
      AMARAVATHI.
   2. KATTA APPARAO, S/O. RAMU NAIDU, R/0 AT DOOR NO.25-41-
      12 NEAR LAKSHMI TALKIES, VISAKHAPATNAM
                            ...RESPONDENT/COMPLAINANT(S):

Counsel for the Petitioner/accused:
  1. B.SUDHAKAR KUMAR
Counsel for the Respondent/complainant(S):
  1. PUBLIC PROSECUTOR
The Court made the following:


ORDER:

The instant Criminal Petition under Section 482 of the Code of

Criminal Procedure, 1973 has been filed by the Petitioner/Accused,

seeking to call for Records pertaining to CrI.M.P.No.330 of 2024 in

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CrI.A.No.234 of 2024, dated:01-08-2024 on the file of the court of the

Hon'ble VII Additional Metropolitan Sessions Judge, Visakhapatnamand

and for quash of condition imposed in order dated 01.08.2024 in Crl.M.P.

No. 330 of 2024 in Crl.A.No.234 of 2024 on the file of Learned Addl.

Metropolitan Sessions Judge, Visakhapatnam.

2. Heard Sri B.Sudhakar, learned counsel for the petitioner and

M.Priyanka Lakshmi, learned Assistant Public Prosecutor representing the

State.

3. Learned counsel for the petitioner would submit that learned Sessions

Judge in the appeal against the conviction for the offence punishable under

Section 138 of Negotiable Instruments Act,1881, passed the impugned

order dated 01.08.2024 in Crl.M.P.No.330 of 2024 under Section 389(3)

Cr.P.C., directed the petitioner to deposit 20% of the compensation amount

ordered by the learned Trial Judge within a period of two (2) months from

the date of the order, while suspending the sentence of imprisonment

awarded by the learned Magistrate. He would submit that the order of the

learned Sessions Judge is not in accordance with the decision of Hon'ble

Supreme Court in Jamboo Bhandari v. M.P. State Industrial

Development Corporation Ltd.1

4. The learned Assistant Public Prosecutor takes notice for the State

and would submit that the Appellate Court has power to order the appellant

to deposit such sum, which shall be a minimum of 20% of the fine or

2023 LiveLaw SC 776

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compensation amount awarded by the Trial Court in an appeal against the

conviction under Section 138 o Negotiable Instruments Act.

5. Section 148 of Negotiable Instruments Act,1881 reads as under:

S. 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 deposit1 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.

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6. The Hon'ble Supreme Court in Jamboo Bhandari (referred supra),

while analysing the mode of interpretation to be adopted in exercise of

power vested under Section 148 of the N.I.Act, held as follows:

"6. What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section

148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded.

7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.

8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or

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minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea.

9. We disagree with the above submission. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not."

(emphasis supplied)

7. A Co-ordinate bench of this Court in decision titled Chilakala

Sreenivasulu v. The State Of Andhra Pradesh and Others2 on analysing

the position of law laid down in Surinder Singh Deswal @ Colonel

S.S.Deswal and others 3 and Jamboo Bhandari (referred supra) held as

follows;

"8. Therefore, in the light of above judgments of the Hon'ble Supreme Court, normally, the Appellate Court will be justified in imposing condition of deposit as provided in section 148 of N.I.A.ct. However, in a case, whether the Appellate Court is satisfied with the condition of deposit of 20% will be unjust, exception can be made for the reason specifically recorded. Hence, when the Appellate Court considers an application filed U/s.389(3) Cr.P.C. corresponding to Section 430 of BNSS by the drawer

Crl.P.No.5914/2024 dated 28.08.2024

2019 (11) SCC 341

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of the cheque (accused), who was convicted for the offence U/s.138 of Negotiable Instruments Act, the Appellant Court has to consider whether it is exceptional case which warrants grant of suspension of sentence without imposing condition of deposit of 20% of fine/compensation amount. If the Appellate Court comes to said conclusion that it is an exceptional case, reasons for coming to such conclusion must be recorded.

9. In the case on hand, the impugned order of the learned Appellate Court does not disclose anything that the learned Appellate Court considered whether the cases in the exception or not? i.e., whether it warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount? "

(emphasis supplied)

8. The impugned order of the learned Appellate Court is silent on the

aspects referred supra in the precedents, as to reasons for the imposition of

the condition to deposit 20% of the fine/compensation amount. The Court

ought to consider whether the case falls into the category of exceptional or

not, prior to the imposing of such deposit as under Section 148 of the

N.I.Act. Hence, the order passed is not sustainable.

9. In this view, the present Criminal Petition is allowed. The impugned

order of the learned Appellate Court is set aside and the matter is remanded

to the Appellate Court for fresh consideration of the application in

Crl.M.P.No.330 of 2024, according to law.