Calcutta High Court (Appellete Side)

Smt. Indrani Chatterjee vs Unknown on 8 June, 2022

   54
8.6.2022
   sb

                                     CRR 2621 of 2019


           In the matter of : Smt. Indrani Chatterjee
                                                            .......Petitioner


                Mr. Pinaki Ranjan Mitra           ...for the Petitioner



                In compliance with the earlier direction, the notice was sent

           to the opposite party but the same is returned with postal

           endorsement, "Refused".

                Affidavit of service so filed by the learned advocate for the

           petitioner, be kept with the record.

                The present revisional application has been preferred against

           the order dated 11.6.2019 passed in criminal appeal no. 12 of

           2017 by the learned Additional District and Sessions Judge, 4th

           Court, Howrah. By the impugned order, learned appellate court in

           criminal appeal no. 12 of 2017 was pleased to reject the

           respondent's petition dated 7.1.2019 by its order no. 13 dated

11.6.2019.

In the said application, respondent no. 1 prayed for a

direction upon accused/respondent who was convicted to deposit

at least 20% of the compensation amount as awarded by the trial

court towards condition of admission of appeal. It was also urged

before the appellate court that the statutory obligation on the part

of the appellant is to deposit Rupees forty thousand in

compliance with the mandate of the Section 148 of the Negotiable

Instruments Act which has been introduced in the year 2018.

Learned appellate court, after considering the said prayer

made by the complainant/Appellant was pleased to reject the

same on the ground that said appeal was preferred on 13.2.2017

and it was admitted on 24.3.2017 but the newly added Section

148 of the Negotiable Instruments Act came into being after filing

of the said appeal and said amendment has got no retrospective

effect, and accordingly, it was rejected by the impugned order.

The short question which is required to be considered here is

whether Ld. Appellate Court was justified in rejecting petitioner's

aforesaid prayer for deposit as a condition for admission of

appeal.

Learned counsel for the petitioner strenuously argued that

unless an order for deposit of 20% compensation amount be not

passed by the first appellate court at the time of admission of

appeal then the very object of amending Section 148 of the

Negotiable Instruments Act would be frustrated. This section has

been incorporated in the said act, because of delay tactics of

unscrupulous drawers of dishonored cheque due to easy filing of

appeals and obtaining stay on execution of sentence. It takes

considerable time to dispose of the appeal and injustice is caused

to the complainant who won the legal battle in the trial court. He

further argued that the interpretation as made by

accd/respondent before Appellate Court that Sec 148-A of N.I. Act

has got not application in respect of appeals filed prior to date of

amendment is absolute a misconception as said amendment does

not confer any substantial right. In this context, he has relied

upon the Apex Court judgment in Surinder Singh Deswal @ Col.

S.S. Deswal and ors. vs. Virender Gandhi.

It is true that prior to the introduction of Section 148 of the

Negotiable Instruments Act, present appeal was preferred, but it

does not mean that the appellate court's hands are tied to ask the

convict appellant to deposit certain percentage of the

compensation amount as a condition for admitting the appeal. In

this context, paragraph 8 and 9 of the Surinder Singh Deswal

(supra) may be quoted as under:

"8.1 Having observed and found that because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of the enactment of Section 138 of the N.I. Act was being frustrated, the parliament has thought it fit to amend Section 148 of the N.I. Act, by which the first appellate Court, in an appeal challenging the order of conviction under Section 138 of the N.I. Act, is conferred with the power to direct the convicted accused- appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. By the amendment in Section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused-appellant has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in Section 148 of the N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 1.9.2018 shall not be applicable has no substance and cannot be accepted, as by amendment in Section 148 of the N.I. Act, no substantive right of appeal has been taken away and/or affected. Therefore the decisions of this court in the cases of Garikapatti Veeraya (supra) and Videocon International Limited (supra), relied upon by the learned senior counsel appearing on behalf of the appellants shall not be applicable to the facts of the case on hand. Therefore, considering the statement of objects and reasons of the amendment in Section 148 of the N.I. Act stated hereinabove, on purposive interpretation of Section 148 of the N.I. Act as amended, we are of the opinion that Section 148 of the N.I. Act as amended, shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under Section 138 of the N.I. Act, even in a case where the criminal complaints for the offence under Section 138 of the N.I. Act were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018. If such a purposive interpretation is not adopted, in that case, the object and purpose of amendment in section 148 of the N.I. Act would be frustrated. Therefore, as such , no error has been committed by the learned first appellate court directing the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial court considering Section 148 of the N.I. Act, as amended.

9. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the N.I. 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 to direct the appellant-accused to deposit such sum and the 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 N.I. Act as amended is concerned, considering the amended Section 148 of the N.I. Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the N.I. Act, though it is true that in amended Section 148 of the N.I. Act the word used is "may", it 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 N.I. 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 filed by the Appellant-Accused under Section 389 of the Cr.P.C. to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the N.I. 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 N.I. Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the N.I. Act, but also Section 138 of the N.I. Act. 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 dishonoured 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, the parliament has thought it fit to amend Section 148 of the N.I. Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the N.I. Act and also Sec 138 of the N.I. Act."(emphasis added)

In view of the above, the impugned order no. 13 dated

11.6.2019 passed in criminal appeal no. 12 of 2017 and also the

order by which appeal was admitted is hereby set aside.

Convict appellant is directed to deposit 20% of the

compensation amount before the trial court within two weeks

from the date of the communication of this order as a condition

precedent for admission of the appeal. On such deposit the appeal

may be admitted and execution of the sentence awarded by the

trial court may be stayed. Failing which accd will surrender before

Trial Court and Ld. Trial Court will pass appropriate directions for

execution of the sentence, after two weeks of the communication

of the order.