Bombay High Court
Altaf Yousuf Naik vs Habib Abbas Faikh And Anr on 19 January, 2021
Bench: A.S. Gadkari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST.)NO. 4770 OF 2020
Habib Abbas Fakih }
Age 69 years, Occ. : Agriculture, }
R/o. 902, Golden Tower, Kalina, }
Santacruz (East), Mumbai 400 098 } ... Petitioner.
(Orig.Complainant)
Versus
1. The State of Maharashtra }
Through office of PP. }
2. Altaf Yousuf Naik, }
Age 48 years, Occ.: Estate Agent, }
R/o. 306, }
Taiyyabi Manzil Pada Mohalla, }
Panvel, Dist. Raigad. } ... Respondents.
(Orig.Accused)
ALONG WITH
CRIMINAL WRIT PETITION (ST.)NO. 7963 OF 2020
Altaf Yousuf Naik }
Age 49 years, Occ. : Estate Agent, }
R/o. 306, Tayyabi Manzil, }
Pada Mohalla, Panvel, }
Raigad - 410 206. } ... Petitioner.
Versus
1. Habib Abbas Fakih }
Age 69 years, Occ. : Agriculture, }
R/o. Abbason Agro Farm, Varvathne, }
Raigad - 420 105. }
2. The State of Maharashtra } ... Respondents.
1/13
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Mr. Rajendra Desai a/w Ms. Prabha Badadare i/b. Mr. Vishu Sonawane for
Petitioner in Writ Petition (St.) No.4770 of 2020 and for Respondent No.1 in
Writ Petition (St.) No.7963 of 2020.
Smt. Gauri Godse a/w Mr. Gaurav Parkar for Petitioner in Writ Petition (St.)
No.7963 of 2020 and for Respondent in Writ Petition (St.) No.4770 of 2020.
Smt. Rutuja Ambekar, A.P.P. for Respondent-State.
CORAM : A.S. GADKARI, J.
DATE : 27TH JANUARY 2021.
P.C. :
By Writ Petition (St.) No.4770 of 2020, under Article 227 of the
Constitution of India, the petitioner/original complainant has impugned Order
dated 28th September 2020 passed below Exh.-10 in Criminal Appeal No. 58
of 2020, by the learned Additional Sessions Judge, Raigad-Alibag, rejecting
the said Application filed by him for modification of Order of suspension of
sentence passed below Exh.-4, dated 27th February 2020 by the Appellate
Court.
By the said Order dated 27th February 2020 passed below Exh.-4,
the Appellate Court while suspending sentence imposed upon the respondent
No.2/original accused and granting him bail, has directed him to deposit 25%
of total compensation awarded by the Trial Court within a period of 60 days
from the date of the passing of the said Order and if the respondent fails to
deposit the said amount within stipulated period, it will carry interest at the
rate of 6% per annum.
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2. Parties herein will be hereinafter referred to as per their original
nomenclature before the Trial Court. The petitioner 'Habib' will be termed as
'complainant' and respondent 'Altaf' will be termed as 'accused'.
3. The Writ Petition (St.) No.7963 of 2020 is filed by original
accused in S.C.C. No. 589 OF 2010, under Section 138 of the Negotiable
Instruments Act, 1881 (for short, "N.I. Act"). The accused has impugned
Order dated 28th September 2020 passed below Exh.-20 in Criminal Appeal
No. 58 of 2020, allowing the said Application preferred by complainant for
release of amount of Rs.47,07,500/- deposited by the accused in furtherance
of Order dated 27th February 2020 passed below Exh.-4 by the same Court.
4. Heard Mr. Desai, learned counsel for the complainant and Mrs.
Godse, learned counsel for the accused. Perused record annexed to the
Petitions.
5. The record reveals that, the complainant Habib Fakih had
instituted a complaint bearing S.C.C. No. 589 of 2010 under Section 138 of
N.I. Act in the Court of Judicial Magistrate First Class, Pen, Dist. Raigad. The
Trial Court by its Judgment and Order dated 11 th February 2020 was pleased
to convict the accused for the offence punishable under Section 138 of N.I. Act
and sentenced him to suffer rigorous imprisonment of two years. The Trial
Court also directed the accused to pay compensation of Rs.1,88,30,000/- to
the complainant within one month from the date of passing of the said Order
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and in default of payment of the said compensation to further suffer rigorous
imprisonment for six months.
6. The record further reveals that, after pronouncement of the said
Judgment and Order, the accused filed an Application under Section 389(3)
of the Cr.P.C. for suspension of sentence and his release on bail. The Trial
Court by its Order dated 11th February 2020 passed below Exh.171, while
suspending the sentence awarded to the accused, imposed a condition that,
the accused to deposit 25% of the total compensation amount i.e.
Rs.47,07,500/- within 14 days from the date of passing of the said Order.
7. The accused thereafter preferred a substantive Appeal bearing
Criminal Appeal No. 58 of 2020 and filed an Application therein for
suspension of sentence and releasing him on bail. The learned Additional
Sessions Judge, Alibag by its Order dated 27th February 2020 passed below
Exh.-4 was pleased to suspend the substantive sentence imposed upon the
applicant subject to deposit 25% of compensation amount within a period of
60 days from the date of passing of the said Order. It is further directed that,
if the accused fails to deposit the said amount within 60 days, it will carry
interest at the rate of 6% per annum.
The complainant therefore filed an Application below Exh.-10 for
modification of the Order passed below Exh.-4. The Appellate Court after
hearing learned Advocates for the complainant and accused, was pleased to
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reject the said Application by its Order dated 28 th September 2020
predominantly on the ground that, after passing of the said Order below
Exh.-4, dated 27th February 2020, it had become functus officio and had no
power to modify its own earlier Order. The said Order is impugned herein in
Writ Petition (St.) No.4770 of 2020.
The complainant also filed an Application below Exh.-20 for
release of the said amount of Rs.47,07,500/- deposited by the accused in
furtherance of Order passed below Exh.-4. The Appellate Court by its separate
Order dated 28th September 2020 passed below Exh.-20 allowed the said
Application and directed the complainant to execute indemnity bond of
Rs.5,000/- with usual conditions incorporated therein. The accused has
impugned the said Order dated 28th September 2020 passed below Exh.-20 in
Writ Petition (St.) No.7963 of 2020.
The aforestated are the basic admitted facts on record in both the
Petitions herein.
8. Mr. Desai, learned counsel for the complainant submitted that, it
took about 10 years for the complainant to get the said complaint bearing
S.C.C. No. 589 of 2010 decided from the Trial Court. He submitted that, the
accused is successful in protracting the said proceedings for more than nine
and half years. That, in Special Leave to Appeal No.7589 of 2018 preferred by
the accused, the Hon'ble Supreme Court had directed the Trial Court to decide
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the said complaint within a period of 3 months, as it was pending for 9 years
and it was only thereafter the Trial Court disposed off the said complaint. He
submitted that, the accused has been directed to pay a total sum of
Rs.1,88,30,000/- to the complainant by the Trial Court and as per the
directions of the Appellate Court, the accused to deposit only 25% of the said
amount during the pendency of the said Appeal is insufficient. Mr. Desai by
relying on the observations made by the Apex Court, in the case of Makwana
Mangaldas Tulsidas Vs. State of Gujarat and Anr. in S.L.P. (Criminal) No.5464
of 2016 dated 05th March 2020 (downloaded from internet site
'Indiankanoon'), submitted that, a matter which is supposed to be disposed off
summarily by the Trial Court in six months, took about ten years for disposal
at the Trial Court level. That, it will take substantial time even to decide the
Appeal and for that reason the complainant should not be further made to
suffer. He submitted that, proviso to Section 148(1) of N.I. Act permits an
additional compensation to be awarded than the interim compensation paid
by the appellant under Section 143A of the Act and therefore the Court has
every power to direct the accused to pay more interim compensation over and
above twenty percent to the complainant. He submitted that, the accused was
responsible for delay in conducting the trial. That either of the parties herein
had to approach the High Court or the Hon'ble Supreme Court on eight
occasions, i.e.on five occasions before the High Court and on three occasions
before the Hon'ble Supreme Court and therefore it is the accused who is
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responsible for the delay. He tendered across the bar a compilation of various
Orders passed by the High Court and the Hon'ble Supreme Court. He
submitted that, therefore the amount of interim compensation may be
enhanced and the accused may be directed to deposit entire compensation
amount in the Registry of the Appellate Court during the pendency of the
Appeal. He also submitted that, though the complainant has not impugned
Order dated 28th September 2020 passed below Exh.20, the direction for
executing indemnity bond of Rs.5,000/- is improper and the said direction
may be suitably modified.
9. Per contra, Smt. Godse, learned counsel for the accused
vehemently opposed the Petition of the complainant and submitted that, it is
not the accused who is solely responsible for the delay in conducting trial.
She submitted that, the complainant is also responsible for the same. She
submitted that, merely because the complaint was decided after a lapse of
about 10 years, itself can not be a ground for directing the accused to deposit
more compensation than what has been directed by the Appellate Court.
While impugning Order dated 28th September 2020 passed below Exh.-20, she
submitted that, the Appellate Court ought not have released the said amount
in favour of the complainant as it was deposited during the pendency of
Appeal. She submitted that, the Appellate Court ought to have imposed strict
conditions upon the complainant while releasing the said amount in his
favour and therefore, the said impugned Order may be set aside and the
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complainant may not be permitted to withdraw the said amount. She
therefore prayed that, the Petition filed by the complainant be dismissed and
the Petition filed by the accused may be allowed.
10. Perusal of record indicates that, the accused on earlier five
occasions had approached this Court. He had also approached the Hon'ble
Supreme Court on three occasions. That, the Hon'ble Supreme Court by its
Order dated 13th November 2019 passed in Special Leave to Appeal (Cri.) No.
7589 of 2018, after taking into consideration the fact that, the complaint
lodged by the complainant is pending for 9 years, had directed the Trial Court
to conclude the proceedings within a period of three months. It is only
thereafter, the Trial Court has ultimately decided the present complaint. As
the substantive Appeal preferred by the accused is pending before the
Appellate Court for final adjudication, this Court is precluded from
commenting on the merits involved in it.
The issue before this Court therefore is, whether to increase
compensation awarded by the Appellate Court by its Order dated 27 th
February 2020 passed below Exh.-4. The Appellate Court has rejected
Application of the complainant filed below Exh.10 for modification of the said
Order by its impugned Order dated 28th September 2020.
11. It is a fact on record that, the complainant had instituted
complaint on 30th December 2010 and the same came to be decided on 11 th
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February 2020 i.e. almost after nine and half years. As noted earlier, the Trial
Court has directed the accused to pay a compensation of Rs.1,88,30,000/-.
The Appellate Court while passing Order below Exh.-4 has added a rider in
Clause No. 3 of his operative part that, if the accused fails to deposit the said
amount within a period of 60 days, it will carry interest at the rate of 6% per
annum.
Mr. Desai, learned counsel for the complainant submitted that,
this rider gives license to the accused for non-payment of the compensation
under the pretext that, he will pay 6% interest on the said amount during the
pendency of the Appeal. I find substance in the said submission. However, as
a matter of fact and as per the submission made by the learned counsel for the
accused, the accused has already deposited 25% of the compensation amount
in the Registry of the Appellate Court and therefore it is not necessary to deal
with said contention.
12. During the course of arguments and after taking into
consideration the prolonged period consumed in perusing the complaint by
the complainant and the observations made by the Appellate Court in its
Order dated 27th February 2020 passed below Exh.-4 and particularly in para
No.8 that, it will take considerable time to decide the Appeal on its own
merits, this Court suggested two options to the accused viz. (i) to pay entire
amount as per directions of the trial Court to the complainant in lump-sum
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and to put an end to the entire litigation by compounding the offence or
(ii) to give a bank guarantee for the said amount of Rs.1,88,30,000/- for a
period of 9 to 12 months and this Court will direct the Appellate Court to
decide the Appeal finally within the same stipulated period.
The accused through his learned counsel expressed his inability to
accept the said suggestions by giving lame excuses and for inappreciable
grounds which are not commensurate with the facts of present case.
13. The conduct of the accused clearly indicates that, he is intending
to procrastinate the litigation. As of today, the accused is a convict and his
sentence has been suspended by the Order dated 27 th February 2020 passed
below Exh.-4 by the Appellate Court. It is also a fact on record that, the
accused as of today is successful in protracting the trial for more than 9 and
half years and the complainant is the ultimate sufferer for the same.
14. Section 143 of the N.I. Act deals with power of Court to try cases
summarily and states that, notwithstanding anything contained in the Code of
Criminal Procedure, 1973, all offences under this Chapter shall be tried by
Judicial Magistrate of the First Class or by a Metropolitan Magistrate and the
provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far
as may be, apply to such trials. By amending Act of 20 of 2018 which came
into effect from 1st September 2018, Section 143A has been inserted in this
statute. Section 143A gives power to the Court trying an Offence under
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Section 138 of the Act to Order the drawer of the cheque to pay interim
compensation to the complainant. Sub-section (2) of Section 143A states
that, the interim compensation under sub-section (1) shall not exceed twenty
percent of the amount of the cheque. A corresponding amendment to Section
148 of the Act has also been brought into effect by the same Amendment Act
i.e. 20 of 2018. Section 148 of the N.I.Act deals with power of Appellate
Court to Order payment pending appeal against conviction. Sub-Section (1) of
Section 148 states that, 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. Proviso to sub-section (1) of
Section 148 clearly states that, the amount payable under this sub-section
shall be in addition to any interim compensation paid by the appellant under
Section 143A.
It is thus clear that, under Section 148(1) of the N.I. Act, the
Appellate Court can direct the drawer of the cheque in an Appeal against
conviction under Section 138 of the Act to deposit such sum which shall be
minimum of twenty percent of the fine or compensation awarded by the Trial
Court.
15. In view of the above discussion and after taking overall view of
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the present case, this Court is of the considered opinion that, the direction of
the Appellate Court to deposit 25% of compensation amount is inadequate
and needs to be enhanced.
Accordingly, the accused is directed to deposit 50% of the total
compensation amount in the Registry of the Appellate Court within a period
of four weeks from the date of the uploading of the present Order on the High
Court website. As a consequence thereof, Clause No.3 of the operative part of
the Order dated 27th February 2020 passed below Exh.-4 is modified and
Clause No.3 of the operative part of the said Order is deleted from record.
In view of the modification of the said Order dated 27th February
2020 below Exh.-4, the impugned Order dated 28 th September 2020 passed
below Exh.-10 is set aside by allowing the said Application below Exh.-10 to
that extent.
16. It is made clear that, if the accused fails to deposit the said
amount within the stipulated period in the Registry of the Appellate Court, the
Appellate Court shall issue a conviction warrant against the accused.
17. As far as the Order dated 28th September 2020 passed below
Exh.-20 which is impugned by the accused is concerned, in view of the above
discussion, I do not think its necessity to restrain the complainant from
withdrawing the said 50% compensation amount if deposited by the accused.
However, the complainant shall file an undertaking before the Appellate
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Court, apart from various usual clauses therein, incorporating that, in case if
he does not succeed in the Appeal, he will bring back the entire amount
withdrawn by him along with reasonable interest prescribed by the Reserve
Bank of India, prevailing on the date of passing of the Judgment and Order by
the Appellate Court within a period of 60 days therefrom.
18. In view of the above, Writ Petition (St.) No.4770 of 2020 is
allowed and Writ Petition (St.) No.7963 of 2020 is dismissed with aforesaid
directions.
(A.S. GADKARI, J.)
