Viral Bipinbhai Kapadia vs State Of Gujarat
2021 Latest Caselaw 18640 Guj

     R/CR.MA/4673/2019                           JUDGMENT DATED: 22/12/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC. APPLICATION NO. 4673 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         VIRAL BIPINBHAI KAPADIA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR DEVANGI B SOLANKI (8888) for the Applicant(s) No. 1
MR H P BAXI (9459) for the Applicant(s) No. 1
for the Respondent(s) No. 2.1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 22/12/2021

                             ORAL JUDGMENT

1. RULE. Learned APP waives service of notice of rule on behalf of respondent State.

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2. By way of this application filed under Section 482 of the Code of Criminal Procedure, the applicant, original accused, has prayed to quash and set aside the order dated 25.02.2019 passed by the Court of learned 2nd Additional Sessions Judge, Rajkot below application Exhibit-5 in Criminal Appeal No. 38 of 2019 whereby, the judgment and order of conviction and sentence dated 25.01.2019 passed by the trial Court under Section 138 of the Negotiable Instrument Act, 1881 (for short, "the N.I. Act") in Criminal Case No.10955 of 2016 has been suspended on condition that the applicant furnishes personal bond of Rs.10,000/- and also deposits 30% of the cheque amount with the Nazir of the District Court, Rajkot on or before 16.03.2019.

3. The facts in brief, as emerging from the impugned complaint, are that the applicant herein and respondent-complainant (now represented by his legal heir) had shared friendly relations for a long period. In 2013, the applicant borrowed Rs.19 Lacs from the respondent-complainant for purchasing a residential flat by way of (i) Cheque No.223603 dated 18.11.2013 drawn on Rajkot Nagarik Sahkari Bank for Rs.8,90,000/- and

(ii) Cheque No.223694 dated 09.12.2013 drawn on the same Bank for Rs.10,00,000/- and (iii) Rs.10,000/- in cash, totalling Rs.19,00,000/-. The respondent-complainant had given the said amount on an assurance by the applicant that the entire amount would be returned within two years. When the respondent-complainant demanded such amount on expiry of the above period, the applicant issued two cheques (i) Cheque No.903380 dated 04.07.2016 for Rs.10,00,000/- and (ii) Cheque No.000001 dated 04.07.2016 for Rs.9,00,000/-. The respondent-complainant deposited the said cheques in his Bank; however, both the cheques were returned on 05.07.2016 with the endorsement of "insufficient funds". On 25.07.2017 the respondent-complainant issued legal notice to the applicant, which

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were duly served. As the applicant failed to repay the cheque amount, the respondent-complainant filed a complaint under Section 138 of the N.I. Act, which came to be registered as Criminal Case No.10955 of 2016 before the trial Court at Rajkot.

3.1 After hearing both the sides, the trial Court passed judgment and order dated 25.01.2019 by which the applicant-accused was convicted for the offence punishable under Section 138 of the N.I. Act and was sentenced to undergo simple imprisonment for One year and was ordered to pay compensation of Rs.19,00,000/-, i.e. the cheque amount, to the respondent-complainant and in case of failure to pay such amount, the applicant-accused was ordered to undergo simple imprisonment for a further period of six months.

3.2 Against the judgment and order dated 25.01.2019, the applicant- accused preferred appeal under Section 374 of Cr.P.C. before the Sessions Court, Rajkot in Criminal Appeal No.38 of 2019. Along with the appeal, the applicant also filed an application (Exhibit-5) under Section 389 of Cr.P.C. seeking suspension of the judgment and order of conviction and sentence dated 25.01.2019. The Sessions Court allowed the application Exhibit-5 vide order dated 25.02.2019 on condition that the applicant deposits 30% of the cheque amount with the Nazir of the District Court on or before 16.03.2019.

3.3 Being aggrieved by the conditional order of depositing 30% of the cheque amount passed by the Sessions Court, the present application has been preferred.

4. Learned advocate Mr. H.P. Baxi appearing for the applicant-

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accused submitted that the trial Court has convicted the applicant for the offence punishable under Section 138 of the N.I. Act and has sentenced him to undergo simple imprisonment for one year and to pay compensation of Rs.19 Lacs to the respondent-complainant; and in case of failure to pay the said amount, the applicant has been ordered to undergo simple imprisonment for a further period of six months. Against the said order passed by the trial Court, the applicant had preferred an appeal before the Sessions Court, Rajkot under Section 374(3)(a) of Cr.P.C..

4.1 It was submitted that the applicant-accused was on bail pending trial and that the maximum punishment prescribed for conviction under Section 138 of the N.I. Act is two years. The applicant is a small trader and the condition imposed by the Sessions Court would cause great hardships to him. He vehemently submitted that the right to appeal provided under Section 374 of Cr.P.C. is a substantive right and that it could not have been restricted by directing the applicant-appellant to deposit 30% of the cheque amount as a precondition for suspending sentence pending the appeal.

4.2 In support of his submissions, learned advocate Mr. Baxi placed reliance upon a decision of the Apex Court in case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr., (2007) 6 SCC 528, wherein it has been observed thus:

"A statute must be read harmoniously. An amount of compensation directed to be paid may not form part of a fine. It may be awarded separately. It may be recoverable as if it is a fine in terms of Section 431 of the Code but by reason thereof it would not become automatically recoverable forthwith. The legal position, however, must be considered keeping in view the purport and object of the

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Act.

An appeal is indisputably a statutory right and an offender who has been convicted is entitled to avail the right of appeal which is provided for under Section 374 of the Code. Right of Appeal from a judgment of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a Fundamental Right. Right of Appeal, thus, can neither be interfered with or impaired, nor it can be subjected to any condition."

4.3 Reliance is also placed on a recent decision of the Apex Court passed in Criminal Appeal No.747 of 2021 (Arising out of Special Leave Petition (Crl.) No.3794/2021) rendered in the case of R. Kalai Selvi v. Bheemappa decided on 04.08.2021, particularly, on the following observations:

"Taking into account all the facts and circumstances of the case as also the law applicable, we are clearly of the view that the High Court could not have made the deposit of fine amount a condition precedent for the purpose of hearing the revision petition. As to what order is to be passed ultimately in the revision petition is a matter entirely different and that would depend on the examination of the matter in terms of the requirements of revisional jurisdiction but, in any case, depositing of fine amount could not have been made a condition precedent for the purpose of even hearing of the revision petition so filed by the appellant."

4.4 Learned advocate Mr. Baxi also relied upon a judgment rendered by the learned Single Judge of this Court in Dhruvaben Bhaveshkumar Mehta v. Mahindra and Mahindra Financial passed in Special Criminal Application No.3989 of 2014 dated 12.01.2015, particularly, on the following observations:

"... From the aforesaid decision of the Honourable Supreme

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Court, it is clear that the petitioner accused is having a statutory right to prefer appeal before the Sessions Court. When such appeal is preferred, it is the duty of the learned Sessions Court to release the concerned accused on bail by suspending the sentence under Section 389 of the Criminal Procedure Code, 1973 on certain terms and conditions, which are not harsh.

9. In the present case, it is clear from the record that the petitioner was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. However, while suspending the sentence, a condition was imposed on the petitioner to deposit 25% amount of the cheque amount. From the facts of the case, it appears that the petitioner is not in a position to fulfill the said condition, and therefore, the said condition is too harsh. The Sessions Court while suspending the sentence could not have imposed such a condition, which is not possible for the accused to comply. If the accused is unable to comply with the said condition, the result would be that the said accused has to be sent to jail for non-fulfilment of the said condition, and therefore, the condition imposed by the Sessions Court of depositing 25% of the cheque amount is required to be quashed and set aside."

5. Learned advocate Mr. Baxi further submitted that the Sessions Court has ordered deposit of 30% of the cheque amount as a condition for suspending the judgment and order of conviction and sentence in purported exercise of powers under Section 148 of the N.I. Act. He emphasized that the said provision came into being on 01.09.2018 whereas, the criminal case under Section 138 of the N.I. Act was instituted much prior thereto, i.e. in 2016 and therefore, the amended provision of Section 148 could not be made applicable to the case instituted in the year 2016.

5.1 It is contended by learned advocate Mr. Baxi that when the section itself, i.e. Section 148 of the N.I. Act, is silent on the issue whether it shall have a retrospective effect or not, then the provision should be

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interpreted in a manner that it is directory in nature and not mandatory. If the Legislature intended to give a retrospective effect to Section 148, then it would have been expressly mentioned in the provision and would not have remained silent on that part. The provision, being sub silentio on the issue of the date of its coming into force, would imply that it was intended to come into effect on the date so mentioned at the time of its enactment. He, therefore, submitted that the Sessions Court has committed serious error in law and on facts in invoking the provisions of Section 148 in the present case.

6. On 14.03.2019 the coordinate Bench of this Court had issued Notice in the matter subject to the condition that the applicant deposits 10% of the amount of cheque. The record reveals that the applicant has deposited the said amount with the 'Nazir' of District Court, Rajkot. It appears that the respondent-complainant passed away on 18.11.2019, which factum is recorded in the order dated 13.12.2019 passed by the coordinate Bench.

7. The matter was listed before this Court on 05.07.2021 and the following order came to be passed:

"As per the statement made by learned advocate for the applicant, respondent No.2 has expired on 18.11.2019. The matter pertains to the provisions under the Negotiable Instruments Act.

The Applicant was directed to take appropriate steps for bringing legal heirs of the deceased complainant vide order dated 13.12.2019. It is submitted by learned advocate for the applicant that they could not trace the legal heirs of the deceased complainant. The State is also a party to the present application. The name of Respondent No.2 is Paresh Lalitbhai Sagar and his residential address is: Ramkrushna Nagar, West. Street No.2, Near Virani School, Rajkot.

Let the Police Station near to the residence (sic) of the

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respondent No.2 inquire about legal heirs of respondent No.2 and place a report on record. Let the matter be listed on 20.7.2021."

8. Thereafter, on 20.07.2021 the following order came to be passed:

"In compliance of the order dated 05.07.2021, the Police Inspector, 'A' Division Police Station, Rajkot City has placed on record a report through learned APP, Ms. Monali Bhatt, and as per the Report, the Police could not find any legal heirs of deceased in the nearby locality. The police has recorded the statement of witness Babubhai Naranbhai Dangar and Salimbhai Hasambhai Sahamdar, both residents of Rajkot, to verify the said aspect. Let the police place on record the details from Rajkot Nagrik Sahakari Bank of Account No.015003100003233. List the matter on 13.08.2021."

9. On 13.09.2021 the following order was passed by this Court:

"The report of the police dated 22.08.2021 in compliance of the order dated 20.07.2021 is placed on record by learned APP Ms. Monali Bhatt, and as per the report of the Police Inspector, "A" Division Police Station, Rajkot City, the account is running in the name of Pushpaben Lalitkumar Sagar and Hiren Lalitbhai Sagar alongwith respondent No.2 Paresh Lalitbhai Sagar who is stated to have died on 18.11.2019. Let the compliance be made for bringing the legal heirs on record. List the matter on 28.09.2021."

10. It appears that no application was filed for bringing the legal heirs of deceased-respondent, original complainant, on record in spite of the above order. Thereafter, when the matter was listed before this Court on 29.11.2021, the son of the deceased-respondent, original complainant, Dayam Paresh Sagar, appeared before the Court and submitted an application with a prayer to join him as the legal heir of deceased- complainant, which was granted. The Registry was directed to amend the cause-title of the application by joining the son of deceased-respondent as

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his legal heir.

11. Learned APP Mr. Pranav Trivedi submitted that the provision of Section 148 of the N.I. Act empowers the appellate Court to order deposit of minimum of 20% of the fine or compensation awarded by the trial Court in an appeal preferred by the drawer against his conviction under Section 138. In the present case, the amount of cheque is Rs.19 Lacs and the trial Court has convicted the applicant-accused under Section 138 of the N.I. Act and has sentenced him to undergo simple imprisonment for one year and to pay compensation of Rs.19 Lacs to the respondent- complainant and in case of failure to pay the said amount, the applicant- accused has been ordered to undergo simple imprisonment for a further period of six months. Against the said judgment and order of conviction and sentence, the applicant-accused had preferred an appeal under Section 374 of Cr.P.C. before the Sessions Court. Along with the appeal, the applicant had preferred application (Exhibit-5) under Section 389 of Cr.P.C. seeking suspension of the judgment and order of conviction and sentence pending appeal. He submitted that considering the provisions of Section 148 of the N.I. Act, the lower appellate Court was completely justified in directing the applicant to deposit 30% of the amount of cheque as a condition for suspending the judgment and order of conviction and sentence pending the appeal.

11.1 Learned APP vehemently argued that the contention raised by the other side that the provisions of Section 148 of N.I. Act would not apply to the applicant is without any merits since the date on which the complaint filed under Section 138 of the N.I. Act came to be decided, the amendment was already in place. Though the complaint was filed in 2016 and the amendment came into effect on 01.09.2018, the relevant factor to

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be considered is that on the date when the amendment came into force, the complaint under Section 138 was pending and therefore, the amendment would apply to all such matters that were pending on the said date. He, therefore, submitted that the present application is devoid of merits and deserves to be rejected.

12. Heard learned advocates on both the sides. Before we advert to the merits of the case, a reference to the provision of Section 148 of the N.I. Act is apposite.

''148. Power of Appellate Court to order payment pending appeal against conviction.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143A.

(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.''

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13. The above provision came to be inserted by Amendment Act No. 20 of 2018 with effect from 01st September 2018. The Statement of Objects and Reasons of the amended Act reads thus:

"1. The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The said Act has been amended from time to time so as to enforceable provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the enforceable Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. As a result of this, enforceable injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realise the value of the cheque. Such delays compromise the sanctity of cheque transactions.

2. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy.

3. It is, therefore, proposed to introduce the Negotiable Instruments (Amendment) Bill, 2017 to provide, inter dishonor alia, for the following, namely:--

(i) to insert a new section 143A in the said Act to provide that the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant, in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and in any other case, upon framing of charge.

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The interim compensation so payable shall be such sum not exceeding twenty per cent. of the amount of the cheque; and

(ii) to insert a new section 148 in the said Act so as to provide that 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.

4. The Bill seeks to achieve the above objectives."

14. From the Statement of Objects and Reasons, it is clear that the amendment was brought in to address the issue of undue delay in final resolution of cheque dishonor cases so as to provide relief to payees of dishonored cheques and to discourage frivolous and unnecessary litigation. It was thought fit to amend Section 148 of the N.I. Act as it was found that the object and purpose of enactment of Section 138 was being frustrated on account of the delay tactics of unscrupulous drawers of dishonored cheques due to easy filing of appeals and obtaining stay on proceedings. By this amendment, the first appellate Court, before which the appeal challenging the order of conviction under Section 138 is filed, has been 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. With the enactment of 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.

15. A plea of sub silentio has been raised on behalf of the applicant on the ground that the amendment brought in with the introduction of Section 148 came into force on 01.09.2018 and therefore, it could not be made applicable to cases which have been filed before the said date. In

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other words, when it has not been expressly stated in the provision that it would have a retrospective effect, it is to be implied that the provision would come into being from the date it was introduced, which is 01.09.2018 in this case. However, this Court does not find any merit in the above submission as it is of the considered opinion that with the introduction of Section 148 in the scheme of things, no substantive right of appeal of the convicted accused has been taken away and / or affected. Keeping in mind the Statement of Objects and Reasons of the amendment in Section 148 of the N.I. Act and on purposive interpretation of Section 148 of the N.I. Act as amended, this Court is 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, even in a case where the criminal complaints for the offence under Section 138 were filed prior to amendment Act No. 20 of 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 would be frustrated. The Legislature has thought it fit to amend Section 148 of the N.I. Act in order to see that due to the delay tactics adopted by the unscrupulous drawers of the dishonored 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 realize the value of the cheque. Therefore, as such, no error could be said to have been committed by the Sessions Court by directing the applicant-accused to deposit certain percentage of the amount of compensation as the said direction is in consonance with the Statement of Object and Reasons of the amendment of Section 148 of the N.I. Act. Hence, the decision rendered in the case of Dilip Dahanukar's case (supra) would not apply to the case on hand.

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16. In Satyendra Kumar Mehra @ Satendera v. The State of Jharkhand (2019) 1 SCC (Cri.) 831, the Apex Court observed thus :

"34. ... The appellate Court while exercising power under Section 389 Cr.P.C. can suspend the sentence of imprisonment as well as of fine without any condition or with conditions. There are no fetters on the power of the Appellate Court while exercising jurisdiction under 389 Cr.P.C. The Appellate Court could have suspended the sentence and fine both or could have directed for deposit of fine or part of fine."

17. In Surinder Singh Deswal @ Colonel S. S. Deswal and others v. Virender Gandhi, (2019) 11 SCC 341, the Apex Court held as under:

"7. 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 Cr.P.C. 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 Cr.P.C., 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.

      7.1     Having observed and found that because of the delay tactics





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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."

18. It is true that the right to appeal is an absolute right. However, in a case where a judgment and order of conviction and sentence is passed, the Court may order release of the accused on bail having regard to the

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nature of offence as also to other relevant factors, including its effect on society. In the present case, the cheques in question were issued in November - December 2013 and there is no quarrel on the issue that the amounts involved are the legal dues payable by the applicant-accused to the respondent-complainant. While allowing the application (Exhibit-5) filed under Section 389 of Cr.P.C., the Sessions Court has directed the applicant-appellant to deposit 30% of the cheque amount as one of the conditions for suspending the judgment and order of conviction and sentence passed by the trial Court. The said order of the Sessions Court was passed in February 2019 and thus, for all these years, i.e. from December 2013 to till date, the respondent-original complainant, who is now represented by his legal heir, has been deprived of the legal dues. Considering the aforesaid factual aspects and in view of the principle laid down by the Apex Court in Surinder Singh Deswal @ Colonel S.S. Deswal's case (supra), this Court is of the opinion that the Sessions Court has rightly invoked the provisions of Section 148 of the N.I. Act since the said provision would apply to all pending cases irrespective of the fact that any complaint was instituted before 01.09.2018, i.e. the date on which the amendment came into effect through Act No.20 of 2018. Hence, the contention raised by learned advocate Mr. Baxi that the provision of Section 148 of the N.I. Act could not be given effect to complaints instituted prior to 01.09.2018 meaning thereby, that it could not be given a retrospective effect, is devoid of merits as also contrary to the settled principles governing the law of negotiable instruments.

19. So far as the applicability of the amended provision of Section 148 of the N.I. Act is concerned, it has to be followed stricto sensu with purposive interpretation. Section 148 of the N.I. Act provides for the

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deposit of a minimum of 20% of the fine amount or compensation by the appellant-accused in an appeal preferred against conviction under Section 138 of the N.I. Act. In other words, the amended provision confers powers upon the appellate Court to issue direction to the appellant- accused to deposit a sum, which shall not be less than 20% of the fine amount or compensation, either on an application filed by the original complainant or on the application filed by the appellant-accused under Section 389 of Cr.P.C. in the pending appeal and such power could be exercised notwithstanding anything contained in the Cr.P.C. In this case, the applicant-accused has been ordered to pay compensation of Rs.19 Lacs by the trial Court, which, of course, is equivalent to the cheque amount and thus, to that effect, the provisions of Section 357(2) of Cr.P.C. would not apply to the present case. However, there is an error in the nomenclature adopted by the Sessions Court while passing the order dated 25.02.2019 inasmuch as the applicant-appellant has been directed to deposit 30% of the "cheque amount" instead of the amount of "fine" or "compensation", which is the term used in the provision of Section 148 of the N.I. Act. Hence, the terminology used by the Sessions Courts in the operative part of the impugned order deserves to be modified to that extent.

20. As recorded in the earlier part of this judgment, no efforts were made by the applicant herein to bring on record the legal heir of deceased-complainant, though the details thereof were provided by the Court and all attempts were made by the applicant-accused to deprive the respondent-complainant of his legal dues. This Court is mindful of the fact that 30% of the amount would come to Rs.5,70,000/-; but at the same time, the matter is required to be considered from other angle also, i.e. the

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period for which the respondent-complainant was deprived of his legal dues and that, even after the conviction of the applicant-accused under Section 138 of the N.I. Act, the respondent-complainant has not received even a single penny of the cheque amount for all these years. Hence, in the facts and circumstances of the present case, none of the judgments relied upon by learned advocate Mr. Baxi would come to the rescue of the applicant.

21. Considering the provisions of Section 148 of the N.I. Act and the Statement of Object and Reasons for the amendment, this Court finds no illegality in the direction issued by the Sessions Court in the order dated 25.02.2019; however, the terminology used in the operative part of the order dated 25.02.2019 passed by the Sessions Court is modified so to be read that the conviction and sentence imposed by the trial Court shall stand suspended pending the appeal on condition that the applicant- appellant deposits 30% of the amount of "compensation" instead of the words - "cheque amount". Rest of the directions issued in the impugned order dated 25.02.2019 remains unaltered. The application stands disposed of as rejected with the above modification. Rule is discharged.

(GITA GOPI, J)

PRAVIN KARUNAN