Ranbir Singh S/O Shri Mehar Singh vs Dr. Vidya Sagar S/O Late Banarasi ...
2022 Latest Caselaw 9333 Bom

Judgment                                                             apl1057.22

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                   NAGPUR BENCH : NAGPUR.



             CRIMINAL APPLICATION [APL] No. 1057/2022.

Ranbir Singh son of Shri Mehar
Singh, Resident of Village
Tajakpur, Tehsil Jagadhri,
District Yamuna Nagar (Haryana)
PC 135 001.                                   ...         APPLICANT.


                                 VERSUS


Dr.Vidya Sagar son of late Babarasi
Das Garg, resident of Flat No.23,
Indrasagar Apartments, Civil Lines,
Near Akashwani Square,
Nagpur 440001.                                ...      NON-APPLICANT.


                           ----------------------------
              Mr. C.F. Bhagwani, Advocate for the Applicant.
             Mr. H.S. Chitale, Advocate for the Non-applicant.
                           -----------------------------


                                   CORAM : VINAY JOSHI, J.


CLOSED FOR JUDGMENT ON :                      12.09.2022.
JUDGMENT PRONOUNCED ON :                      16.09.2022.




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 Judgment                                                                 apl1057.22

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JUDGMENT :

Heard. Considering the controversy involved in the

matter and by consent of the learned Counsel appearing for the

parties, Criminal Application is taken up for final disposal at the

stage of admission.

Admit.

2. The applicant who is an accused of Summary Criminal

Case No.6787/2018, has invoked the inherent jurisdiction of this

Court by challenging the order dated 26.04.2022 passed in Criminal

Appeal No.76/2022, by which the Appellate Court has directed the

applicant to deposit 20% of the compensation amount in terms of

Section 148 of the Negotiable Instruments Act (hereinafter referred

to as "the N.I.Act" for short).

3. The facts leading to the present application in nutshell are

that, the non-applicant has filed a Criminal Complaint against the

applicant alleging commission of offence punishable under Section

138 of the N.I.Act. The said complaint was numbered as S.C.C.

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No.6787/2018. The parties led evidence and on full fledged trial

the learned Magistrate held the applicant guilty for commission of

offence punishable under Section 138 of the N.I.Act. The learned

Magistrate by convicting the applicant has directed him to pay a sum

of Rs.70 lakhs under Section 357[1] of the Code of Criminal

Procedure by way of compensation. Feeling aggrieved by the said

judgment and order of conviction, the applicant has preferred an

appeal to the Court of Sessions which has been numbered as

Criminal Appeal No.76/2022. The applicant has also applied for

suspension of the execution of sentence in terms of Section 389[1] of

the Code of Criminal Procedure. The learned Sessions Judge while

suspending the sentence, directed the applicant to deposit 20% of

the above referred sum.

4. The learned Counsel appearing for the applicant has

challenged the impugned order on the ground that the Appellate

Court erred in passing discretionary order of directing to pay partial

compensation amount. It is submitted that the applicant has

arguable case on merits in appeal, and thus, the Appellate Court

ought to have considered the applicants defence on prima facie basis

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while passing the impugned order.

5. It is argued that the disputed cheque was returned with

an endorsement as "no such account", and therefore, the essential

ingredients of Section 138 of the N.I.Act are missing. It is submitted

that the non-applicant has admitted that the transaction was with his

deceased brother and therefore, the complaint was not maintainable,

since there was no liability towards the non-applicant. Moreover, it

is argued that the non-applicant has not examined the Bank Officers

to establish return of cheque for insufficiency of funds. According to

the applicant, these vital aspects have not been considered, and

therefore, the Appellate Court went wrong in exercising the

discretion while passing the order in terms of Section 148 of the

N.I.Act.

6. Per contra, the learned Counsel appearing for the non-

applicant [original complainant] supported the impugned order by

contending that the provisions of Section 148 of the N.I.Act is of

mandatory nature, meaning thereby the Appellate Court has no

discretion in the matter of directing to pay compensation. He would

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submit that the discretion lies with the Appellate Court is only to the

extent of deciding the amount of compensation in between 20% of

fine/compensation to the maximum level. Moreover, it is submitted

that the learned trial Court has rejected the defence which are

sought to be argued in appeal. Moreover, this is not a stage to record

prima facie opinion on merits of the appeal since it is subjudice.

7. The learned Counsel for the non-applicant has heavily

relied on the decision of Supreme Court in case of Surinder Singh

Deswal and others .vrs. Virender Gandhi - (2019) 11 SCC 341, to

contend that the provisions of Section 148 of the N.I.Act is of

mandatory nature. Particularly he took me through paragraph no.8

of the judgment to contend that the word "may" has to be read as

"shall", in view of the aims and object of the amending Section 148

in the N.I. Act. He has further relied on the decision of Rajasthan

High Court in case of G. K. Construction Company .vrs. Balaji

Muskan Samagri Stores - S.B.Criminal Misc. (Pet.) No.189/2022

decided on 04.03.2022, wherein the learned Single Judge of

the Rajasthan High Court after considering the decision of the

Supreme Court in case of Surinder (supra), expressed that the

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provisions of Section 148 of the N.I.Act are of mandatory nature.

8. In above referred case of Surinder, it has been ruled that

in context of Section 148 of the N.I.Act, the word "may" is to be

generally construed as "shall", but, not to direct to deposit is an

exception for which special reasons are to be assigned. The dictum

of Supreme Court postulates that by assigning special reasons,

exception can be carved out to the mandate of Section 148 of the

N.I.Act.

8. In view of above, I have considered the submissions

advanced by the applicant on facts. As noted above, there must be

overwhelming exceptional circumstances to escape from the

statutory rigour of Section 148 of the N.I.Act. The statement of

objects and reasons of the amendment of Section 148 of the N.I.Act,

indicates that the amendment is purposively meant to strengthen the

credibility of cheques and help trade and commerce on the basis of

negotiable instruments. In the light of said position, one has to make

out a very strong case to claim exception to the statutory mandate.

In the light of said position, I have closely examined the reasons

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canvassed by the applicant for exempting him from the statutory

requirement.

9. The facts are such that the applicant [accused] has

entered into an agreement of sale with brother of the non-applicant

[complainant]. Pursuant to the said transaction, the brother of

complainant has paid an amount of Rs.50 lakhs to the applicant.

The deceased brother of the non-applicant has executed a Will, on

the strength of which the non-applicant has demand refund of Rs.50

lakhs, on which the applicant had allegedly issued a cheque of Rs.50

lakhs, which was dishonoured. The trial Court has considered the

competency of the non-applicant to claim the amount on the

strength of testamentary document. The trial Court has emphasized

on the point that in reply notice, the applicant has admitted issuance

of cheque as well as liability. Undisputedly, the cheque was signed

by the applicant and it was returned from the Bank may be for the

reason of "no such account". The applicant has not raised any

dispute regarding rest of the statutory requirement of issuance of

demand notice and filing of the complaint within a stipulated

period. In such a background, I do not find any exceptional case

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to deviate from the very purport behind amending Section 148 of

the N.I.Act.

10. In view of above, no case is made out to invoke the

inherent powers of this Court, and therefore, Criminal Application is

dismissed. No costs.

JUDGE

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