Andhra Pradesh High Court - Amravati
Tirumala Naga Venkata Satyanarayana vs State Of Andhra Pradesh on 4 September, 2024
APHC010378322024 IN THE HIGH COURT OF ANDHRA
PRADESH AT AMARAVATI
[3368]
(Special Original Jurisdiction)
WEDNESDAY, THE FOURTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI
CRIMINAL PETITION NO: 6085/2024
Between:
Tirumala Naga Venkata ...PETITIONER/ACCUSED
Satyanarayana
AND
State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT(S)
and Others
Counsel for the Petitioner/accused:
1. MALLAVELLI NAGA SAI LALITH KUMAR
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR
The Court made the following:
2
THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CRIMINAL PETITION No.6085 OF 2024
ORDER:
This Criminal Petition is filed by the
Petitioner/Appellant/Accused, under Section 482 of Code of
Criminal Procedure, 1973, for quash of the order dated
27.03.2024 in Crl.M.P.No.195 of 2024 in Crl.A.No.51 of 2024
passed by the learned IV Additional District and Sessions Judge,
West Godavari, Tanuku.
2. Heard learned counsel for the petitioner and 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 passed the impugned order dated 27.03.2024 in
Crl.M.P.No.195 of 2024 in CRLA No.321 of 2021 under Section
389(1) Cr.P.C., directed the petitioner to deposit 20% of the
compensation amount ordered by the learned Trial Judge within a
period of sixty (60) days 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 Jamboo Bhandari v.
MP State Industrial Development Corporation Ltd's case.
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 compensation amount awarded by
the trial Court in an appeal against the conviction U/s.138 of
Negotiable Instruments Act.
5. Section 148 of Negotiable Instruments Act is 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.
6. The Hon'ble Supreme Court in the case of Surinder Singh
Deswal @ Colonel S.S.Deswal and others1, on section 148 of
Negotiable Instruments Act 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 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 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, the word used is "may", it
2019 (11) SCC 341
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 file 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 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."
7. The Hon'ble Supreme Court in Jamboo Bhandari Vs.
M.P.State Industrial Development Corporation Limited and
Others2, referring above para in the case of Surinder Singh
Deswal @ Colonel S.S.Deswal and others, held in paras 6 to 9
as under:
"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
2023 LiveLaw (SC) 776
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 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."
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(1) Cr.P.C. corresponding to Section 430 of BNSS by the
drawer 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?
10. In those circumstances, the impugned order of the learned
Appellate Court is set side and restored the application filed by
the appellant U/s.389(1) Cr.P.C., corresponding to section 430 of
BNSS before the Appellate Court. The petitioner/accused shall
appear before the learned Appellate Court in 10 (ten) days from
the date of receipt of copy of this order. On such appearance, the
learned Appellate Court shall consider the application afresh and
dispose of the same as expeditiously as possible, preferably
within seven (07) days. Till then, the sentence imposed by the
learned trial Court stands suspended. If the petitioner/accused
fails to appear before the learned Appellate Court as directed
above, the Criminal Petition stands dismissed without recourse to
the Court.
11. Accordingly, the Criminal Petition is disposed of at the
stage of admission.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_______________________ ___
JUSTICE B.V.L.N. CHAKRAVARTHI
04.09.2024.
Dmr
THE HONOURABLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
CRIMINAL PETITION NO: 6085 OF 2024
Date: 04.09.2024
Dmr
