Calcutta High Court (Appellete Side)
Sri Mithun Modak vs Sri Badal Chakraborty on 30 January, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 632 of 2020
Sri Mithun Modak
Vs
Sri Badal Chakraborty
For the Petitioner : Mr. Amarta Ghose,
Mr. Siddhartha Paul,
Mr. Souryadeep Ghosh.
For the Opposite Party : Mr. Mani Shankar Chaudhury.
Heard on : 09.01.2023
Judgment on : 30.01.2023
2
Shampa Dutt (Paul), J.:
The present revisional application has been referred praying for
setting aside or modification of an order dated 24th December, 2019
passed by the Learned Additional District & Sessions Judge,
Raghunathpur, Purulia in Criminal Appeal No. 08 of 2019 preferred by
the accused/petitioner on being convicted by the learned Magistrate in
Complaint Case No. 03 of 2013 under Section 138 of the Negotiable
Instruments Act.
The petitioner's case is that on basis of a false complaint with
completely forged documents the petitioner has been implicated as an
accused in a case of dishonor of cheque amounting Rs. 5,00,000/- (five
lakhs) by the opposite party.
The petitioner pleaded not guilty to the commission of the
alleged offence and faced the trial. But due to lack of proper legal
guidance the petitioner was unable to defend himself in the aforesaid
trial which was presided over by the Learned Additional Chief Judicial
Magistrate, 2nd Court, Raghunathpur, Purulia. As a result the petitioner
was convicted for the commission of offence punishable under Section
138 of the Negotiable Instruments Act and the petitioner was sentenced
to undergo simple imprisonment for a period of one year and to pay a
fine of Rs. 7,00,000/- in default to further undergo simple
imprisonment of one year.
3
The petitioner has been constrained to prefer an appeal against
the order of conviction and sentence. The said appeal is pending before
the court of the Learned Additional District & Sessions Judge,
Raghunathpur, Purulia as Criminal Appeal No. 08 of 2019.
The opposite party filed a petition dated 18.09.2019 before the
court of the Learned Additional District and Sessions Judge,
Raghunathpur, Purulia praying for pass necessary direction upon the
appellant to deposit 30% of the fine amount or compensation amount
as awarded by the Learned Trial Court.
By an order dated 24.12.2019 the Learned Judge allowed the
aforesaid petition dated 18.09.2019 filed by the opposite party, on
contest by directing the petitioner to deposit 20% of the fine amount or
the compensation amount as awarded by the Learned Trial Court by
19.02.2020
positively.
That due to financial constraints your petitioner has been
unable to accumulate and deposit 20% of the fine/compensation
amount within such a short span of time.
The petitioner believes that there is every chance of success in
the appeal preferred by the petitioner before the Learned Court below on
the basis of proper appreciation of the evidence, which has otherwise
been overlooked by the Learned Trial Court while arriving at a
conclusion of guilt against the petitioner.
The order dated 24.12.2019 passed by the Learned Additional
District & Sessions Judge, Raghunathpur, Purulia is too harsh and
against the principle of natural justice.
Mr. Amarta Ghose, Learned Advocate for the petitioner has
submitted that the Learned Judge has failed to appreciate that there is
every chance of success in the appeal preferred by the petitioner before
the Learned Trial Court that on the basis of proper appreciation of the
evidence, which has otherwise been overlooked by the Learned Trial
Court while arriving at a conclusion of guilt against the petitioner.
The order dated 24.12.2019 passed by the Learned Additional
District and Sessions Judge, Raghunathpur, Purulia is too harsh and
against the principles of natural justice.
The Learned Judge has failed to appreciate that the Learned
Trial court has erroneously overlooked the specific defence case as
adduced by the petitioner while coming to a finding of guilt against the
petitioner.
The Learned Trial Court has come to an order of conviction
against the petitioner on the basis of vague surmises and conjectures.
The Learned Appellate Court has failed to appreciate that
directing the petitioner to pay 20% of the fine /compensation amount
and that too within a short period of time is not only harsh, the same
has also put the petitioner into acute financial hardships.
That the impugned order dated 24.12.2019 passed by the
Learned Additional District & Sessions Judge, Raghunathpur, Purulia
in Criminal Appeal No. 08 of 2019 is contrary to the principles of
natural justice and thus the same should be set aside and/or modified.
Mr. Manish Shankar Chaudhary learned Counsel for the
opposite party has submitted that the order under revision has been
passed in accordance with law. And as such the present revision is
liable to be dismissed.
On hearing the Learned Counsels for both sides, the orders
under revision, the materials on record and the relevant provisions of
law, Section 148 of the Negotiable Instruments Act is reproduced here.
Section 148 N.I. Act, lays down:-
"Section 148: Power of Appellate Court to order
payment pending appeal against conviction.
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), 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:
Provided that the amount payable under this sub-
section shall be in addition to any interim compensation
paid by the appellant under Section 143-A.
(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."
In Surinder Singh Deswal @ COL. S.S. Deswal & Ors. vs.
Virender Gandhi & Anr., Criminal Appeal Nos. 1936-1963 of 2019,
on 8th January, 2020, the Supreme Court held that:-
"11. The appellants had challenged the order dated
01.12.2018 passed by the Additional Sessions Judge,
Panchkula by which while entertaining the criminal
appeal of the appellants, Appellate Court has
suspended the substantive sentence of the appellants
subject to deposit 25% of the compensation awarded by
the trial court in favour of the complainant. The petitions
under Section 482 Cr.P.C. filed by the appellants
questioning the order dated 01.12,2019 were dismissed
by the High Court vide its judgment dated 24.04.2019
against which judgment the appellants have also filed
SLP(Criminal)Nos.4948-4975 of 2019) which were
dismissed by this Court on 29.05.2019. All arguments
raised by the appellants questioning the order dated
01.12.2018 have been elaborately dealt with by this
Court and rejected. The submissions regarding
challenge to the order dated 01.12.2018 of the learned
Additional Sessions Judge which have been addressed
before us have been considered by this Court and
rejected. It is useful to refer paragraph 8., 8.1 and 9 of
the judgment of this Court which are to the following
effect:
"8. It is the case on behalf of the
Appellants that as the criminal complaints
against the Appellants Under Section
138 of the N.I. Act were lodged/filed
before the amendment Act No. 20/2018 by
which Section 148 of the N.I. Act came to
be amended and therefore
amended Section 148 of the N.I. Act shall
not be made applicable. However, it is
required to be noted that at the time when
the appeals against the conviction of the
Appellants for the offence Under Section
138 of the N.I. Act were preferred,
Amendment Act No. 20/2018 amending
Section 148 of the N.I. Act came into force
w.e.f. 1.9.2018. Even, at the time when
the Appellants submitted application/s
Under Section 389 of the Code of Criminal
Procedure to suspend the sentence
pending appeals challenging the conviction
and sentence, amended Section 148 of the
N.I. Act came into force and was brought
on statute w.e.f. 1.9.2018. Therefore,
considering the object and purpose of
amendment in Section 148 of the N.I. Act
and while suspending the sentence in
exercise of powers Under Section 389 of
the Code of Criminal Procedure, when the
first appellate court directed the
Appellants to deposit 25% of the amount of
fine/compensation as imposed by the
learned trial Court, the same can be said
to be absolutely in consonance with the
Statement of Objects and Reasons of
amendment in Section 148 of the N.I. Act.
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 Code of Criminal
Procedure 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 Section 138 of the N.I. Act."
12. This Court having already upheld the order of the
Appellate Court dated 01.12.2018 suspending the
sentence subject to deposit 25% of the amount of
compensation any submission questioning the order of
the Appellate Court directing the suspension of sentence
subject to deposit of 25% of the compensation amount
needs no further consideration. By dismissal of the
criminal appeals of the appellants on 29.05.2019 by this
Court the challenge stands repelled and cannot be
allowed to be reopened.
13. The second round of litigation which was initiated
by the appellant by filing application under Section
482 Cr.P.C. was against the order dated 20.07.2019
passed by the Additional Sessions Judge, Panchkula by
which Additional Sessions Judge held that the appellant
having not complied with the direction dated 01.12.2018
to deposit 25% of the amount of compensation, the order
of suspension of sentence shall be deemed to have been
vacated. The order dated 20.07.2019 was an order
passed by the Additional Sessions Judge on account of
failure of the appellant to deposit 25% of the amount of
compensation. The suspension of sentence on
01.12.2018 was subject to the condition of deposit of
25% of the amount of compensation, when the condition
for suspension of sentence was not complied with,
learned Additional Sessions Judge was right in taking
the view that order of suspension of sentence shall be
deemed to have been vacated. Challenge to order dated
20.07.2019 has rightly been repelled by the High Court
by its elaborate and well considered judgment dated
10.09.2019.
14. Learned counsel for the appellant has placed
reliance on the judgment of this Court dated 30.07.2019
in Criminal Appeal No.1160 of 2019 (G.J. Raja vs.
Tejraj Surana). This Court in the above case was
considering provisions of Section 143A of the N.I. Act
which was inserted by the same Amendment Act 20 of
2018 by which Section 148 of the N.I. Act has been
inserted. This Court took the view that Section 143A is
prospective in nature and confined to cases where
offences were committed after the introduction of Section
143A i.e. after 01.09.2018. In paragraph 22 of the
judgment following has been held:
"22. In our view, the applicability of Section
143A of the Act must, therefore, be held to be
prospective in nature and confined to cases
where offences were committed after the
introduction of Section 143A, in order to force
an accused to pay such interim
compensation."
15. The judgment of this Court which was delivered in
the case of the present appellants i.e. Criminal Appeal
Nos.917-944 of 2019 (Surinder Singh Deswal @
Col. S.S. Deswal and others vs. Virender Gandhi)
(in which one of us M.R.Shah, J was also a
member) was also cited before the Bench deciding the
case of G.J. Raja. This Court in its judgment dated
29.05.2019 has rejected the submission of the
appellants that Section 148 of N.I. Act shall not be made
applicable retrospectively. This Court held that
considering the Statement of Objects and Reasons of the
amendment in Section 148 of the N.I. Act, on purposive
interpretation of 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.
16. The Bench deciding G.J. Raja's case has noticed
the judgment of this Court in the appellants' case i.e.
Surinder Singh Deswal's case and has opined that
the decision of this Court in Surinder Singh Deswal's
case was on Section 148 of the N.I. Act which is a stage
after conviction of the accused and distinguishable from
the stage in which the interim compensation was
awarded under Section 143A of the N.I.Act. When the
Bench deciding G.J. Raja's case(supra) itself has
considered and distinguished the judgment of this Court
in appellants' own case i.e. Surinder Singh Deswal's,
reliance by the learned counsel for the appellants on the
judgment of this Court in G.J. Raja's case is misplaced.
It is useful to refer to paragraph 23 of the judgment in
G.J. Raja's case which is to the following effect:
"23. We must, however, advert to a decision
of this Court in Surinder Singh Deswal and
Ors. v. Virender Gandhi (2019) 8 SCALE 445
where Section 148 of the Act which was also
introduced by the same Amendment Act 20
of 2018 from 01.09.2018 was held by this
Court to be retrospective in operation. As
against Section 143A of the Act which
applies at the trial stage that is even before
the pronouncement of guilt or order of
conviction, Section 148 of the Act applies at
the appellate stage where the Accused is
already found guilty of the offence
Under Section 138 of the Act. It may be
stated that there is no provision in Section
148 of the Act which is similar to Sub-Section
(5) of Section 143A of the Act. However, as a
matter of fact, no such provision akin to Sub-
section (5) of Section 143A was required as
Sections 421 and 357 of the Code, which
apply post-conviction, are adequate to take
care of such requirements. In that sense
said Section 148 depends upon the
existing machinery and principles already in
existence and does not create any fresh
disability of the nature similar to that created
by Section 143A of the Act. Therefore, the
decision of this Court in Surinder Singh
Deswal (2007) 13 SCC 492 stands on a
different footing."
In view of the above, the judgment of this Court in the
case of G.J. Raja does not help the appellants.
18. The High Court is right in its opinion that question
No.2 as framed in Vivek Sahni's case was not
correctly considered. When suspension of sentence by
the trial court is granted on a condition, non- compliance
of the condition has adverse effect on the continuance of
suspension of sentence. The Court which has
suspended the sentence on a condition, after noticing
non-compliance of the condition can very well hold that
the suspension of sentence stands vacated due to non-
compliance. The order of the Additional Sessions Judge
declaring that due to non- compliance of condition of
deposit of 25% of the amount of compensation,
suspension of sentence stands vacated is well within
the jurisdiction of the Sessions Court and no error has
been committed by the Additional Sessions Judge in
passing the order dated 20.07.2019.
19. It is for the Appellate Court who has granted
suspension of sentence to take call on non-compliance
and take appropriate decision. What order is to be
passed by the Appellate Court in such circumstances is
for the Appellate Court to consider and decide. However,
non-compliance of the condition of suspension of
sentence is sufficient to declare suspension of sentence
as having been vacated."
In view of the observations above, there is no irregularity in the
order/judgment under revision and the same being in accordance with/
law in hereby affirmed. The order impugned does not deserve
interference by this Court in its inherent jurisdiction.
Accordingly, CRR 632 of 2020 is dismissed.
All connected Application stand disposed of.
Interim order if any stands vacated.
There will be no order as to costs.
A copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
