Chattisgarh High Court
Dr. Manmohan Kumar Khanduja vs Dr. N.C. Kothari on 9 July, 2025
1
Digitally
signed by
SOURABH
SOURABH PATEL
PATEL Date:
2025.07.10
18:22:13
+0530
2025:CGHC:31490
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 2128 of 2025
1 - Dr. Manmohan Kumar Khanduja S/o Shri Dharampal Khanduja,
Aged About 69 Years, (Mentioned As 68 Years In Impugned Order )
R/o House No. 36/6 Nehru Nagar (East) Bhilai Civil Tehsil And
District - Durg (C.G.).
... Petitioner
versus
1 - Dr. N.C. Kothari S/o Late Shri Aaskaran Kothari Aged About 35
Years (As Mentioned In The Impugned Order ) R/o Shanichari Bazar
Durg Tehsil And District - Durg (C.G.).
... Respondent
----------------------------------------------------------------------------------------------
For Petitioner : Mr. Jaydeep Singh Yadav, Advocate.
For Respondent : Not noticed.
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Order on Board
09.07.2025
1 Heard.
2 The present petition has been filed by the petitioner under
Section 528 of the BNSS, 2023 being aggrieved by the
impugned order dated 09.04.2025 passed in Criminal Appeal
No. 171/2025 by the Learned Second Additional Session Judge,
Durg (C.G.) whereby the learned Sessions Court has imposed a
condition of depositing 20% of the compensation amount within
60 days while suspending the sentence, on an application
preferred under Section 430 of BNSS, 2023.
3 The brief facts of the case are that the respondent/complainant
filed a complaint against the petitioner/accused under Section
138 of the Negotiable Instruments Act, 1881, alleging that the
accused exploited their long-standing personal and familial
acquaintance to secure a loan of ₹25,00,000 for Apollo
Hospital, Bhilai. Despite executing a promissory note and
issuing Cheque No. 497978 dated 28.10.2017, the accused
failed to repay the loan, and the cheque was dishonored due to
insufficient funds. On 22.02.2025, the learned Judicial
Magistrate First Class, Durg, Chhattisgarh, after hearing both
parties, passed an order in Criminal Case No. 60/2018,
convicting the appellant to one year of rigorous imprisonment
and a compensation amount of ₹30 lakhs, with a default
stipulation. Being aggrieved by the said order, the petitioner
preferred Criminal Appeal No. 171/2025 under Section 415 of
the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, before
the learned Second Additional Sessions Judge, Durg (CG),
along with an application under Section 430 of BNSS, 2023,
seeking suspension of sentence and grant of bail. The appellate
court allowed the appeal, suspending the sentence and
granting bail to the petitioner on the condition that he deposits
20% of the compensation amount within 60 days.
4 Learned counsel for the petitioner contended that the word
'may' has been used in Section 148 of the N.I. Act an the
Appellate Court has used discretion but has not given any
reason for the same. The learned appellate court has committed
grave error while passing the impugned order dated 09.04.2025
and has wrongly imposed a condition of depositing 20% of the
compensation amount while suspending the execution of order
dated 22.02.2025. The learned Appellate court has without
following the provisions of the Code of Criminal Procedure,
1973 and without considering the facts material available on
record passed the impugned order, hence it is liable to be
quashed.
5 Since the issue before this Court hinges upon the interpretation
of Section 148 of the N.I. Act, which was subsequently
incorporated to the N.I. Act vide the Negotiable Instruments
(Amendment) Act, 2018 (Act No. 20 of 2018), the relevant part
thereof is reproduced hereunder:-
["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 per
cent of the fine or compensation awarded by the trial
Court:
Provided that........."
(2).....
(3).....
Provided that ......]
6 Hon'ble Supreme Court in the matter of Jamboo Bhandari vs.
M.P. State Industrial Development Corporation Ltd. & Ors.2,
passed in Criminal Appeal No. 2741 of 2023 (@ SLP (Crl.) No.
4927 of 2023) on 04.09.2023 held as under:
"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
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."
7 The Hon'ble Supreme Court in the matter of Muskan
Enterprises & Anr. vs. State of Punjab & Anr. 3, also
1 Inserted by Act No. 20 of 2018, w.e.f. 1-9-2018.
2 (2023) 10 SCC 446
3 2024 SCC OnLine SC 4107 : MANU/SC/1431/2024
followed the judgment passed in Jamboo Bhandari (supra)
and set aside the impugned order of the High Court as well as
the Sessions Court.
8 In the case in hand, 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.
9 In those circumstances, the impugned order of the learned
Appellate court is set aside and restored the application filed by
the petitioner under Section 430 of BNSS before the Appellate
court. The learned Appellate court shall reconsider the
application afresh and dispose of the same with a fresh
reasoned order as early as possible. Till then, the execution of
order dated 22.02.2025 passed by Judicial Magistrate First
Class, Durg, District-Durg (C.G.) in Criminal Case No. 60/2018
stands suspended.
10 Accordingly, the CRMP is disposed of at the stage of
admission.
Sd/-
(Sanjay Kumar Jaiswal)
Judge
Sourabh P.
