[Cites 7, Cited by 0]
Chattisgarh High Court
Smt. Madhuri Indira Rao vs Vyas Pathak on 7 April, 2026
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 972 of 2026
1 - Smt. Madhuri Indira Rao W/o Shri Mahesh Rao Aged About 58
Years R/o- 21/493, Opposite Bungalow Of District And Session
Court, Civil Line, Thana- Civil Line Raipur, District- Raipur (C.G.)
... Petitioner
versus
1 - Vyas Pathak S/o Shri Kaanti Kumar Pathak Aged About 43 Years
R/o Village- Navagaon, Post Pandatari, Tehsil Pandariya, District
Kabirdham (C.G.)
... Respondent
---------------------------------------------------------------------------------------------
For Petitioner : Mr. J.K. Gupta, Advocate.
For Respondent : Not noticed.
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Order on Board
07/04/2026
Heard.
1 The present petition has been filed by the petitioner under
Section 528 of the BNSS, 2023 being aggrieved by the
impugned order dated 31.01.2026 passed in Criminal Appeal
No. 05/2026 by the Learned Second Additional Sessions Judge,
Kawardha, District - Kabirdham (C.G.) whereby the learned
Sessions Court has imposed a condition of depositing 20% (Rs.
8,00,000/-) of the compensation/fine amount within 60 days
while suspending the execution of the judgment dated
01.01.2026 on an application preferred under Section 430 of
Digitally
BNSS, 2023.
signed by
HEERA HEERA
LAL SAHU
LAL Date:
SAHU 2026.04.07
16:38:09
+0530
2 Brief facts of the case are that the respondent/complainant
filed a case under Section 138 of N.I. Act against the petitioner
before the learned Judicial Magistrate First Class, Pandariya,
District - Kabirdham (C.G.). The learned trial Court after taking
into consideration the facts and circumstances of the case and
evidence adduced in the case passed the judgment dated
01.01.2026 and convicted the present petitioner and sentenced
him to undergo S.I. for 1 year and directed to pay a
compensation of Rs. 40,00,000/- under Section 357(3) of
Cr.P.C. with default stipulation of three months S.I.
3 Being aggrieved by the aforesaid judgment/order the petitioner
preferred a Criminal Appeal under Section 415 of BNSS, 2023
before the Learned appellate Court along with an application
under Section 430 of BNSS, 2023 for suspension of execution
of judgment/order dated 01.01.2026 which got allowed with a
condition that petitioner shall deposit 20% (Rs. 8,00,000/-) of
the compensation amount within 60 days while suspending the
execution of the judgment/order dated 01.01.2026.
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 31.01.2026
and has wrongly imposed a condition of depositing 20% of the
compensation amount while suspending the execution of order
dated 01.01.2026. 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
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
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
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 389 of Cr.P.C.
corresponding to 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 01.01.2026 passed by Judicial Magistrate First
Class, Pandariya, District - Kabirdham (C.G.) in Criminal
(Complaint) Case No. 104/2019 stands suspended.
10 Accordingly, the CRMP is disposed of at the stage of
admission.
Sd/-
(Sanjay Kumar Jaiswal)
Judge
H.L. Sahu
