H.V. Synthetic Pvt. Ltd vs State Of Gujarat
2022 Latest Caselaw 8183 Guj

      R/CR.RA/846/2022                           JUDGMENT DATED: 20/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL REVISION APPLICATION NO. 846 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SAMIR J. DAVE

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1      Whether Reporters of Local Papers may be allowed              -NO-
       to see the judgment ?

2      To be referred to the Reporter or not ?                       -NO-

3      Whether their Lordships wish to see the fair copy             -NO-
       of the judgment ?

4      Whether this case involves a substantial question             -NO-
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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1.    H.V. SYNTHETIC PVT. LTD.
2.        NARANBHAI DAHYABHAI CHAVDA
3.        RATANBEN KISHORBHAI CHAVDA
4.        Haygreev KISHORBHAI CHAVDA
                VERUS
1.        STATE OF GUJARAT
2.        SURESHBHAI JAGJIVANDAS THAKKAR
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Appearance:
MR HB CHAMPAVAT(6149) for the Applicant(s) No. 1,2,3,4
MR BC DAVE(245) for the Respondent(s) No. 2
MR RC KODEKAR, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                             Date : 20/09/2022

                            ORAL JUDGMENT

1. By way of present application, applicants have requested

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to quash and set aside condition no. IV imposed by the learned Additional Sessions Judge, Court No. 10, City Sessions Court, Ahmedabad in Criminal Appeal No. 151 of 2021 vide order dated 16th July 2022, whereby the applicants are directed to deposit 20% of the cheque amount in addition to the 20% already deposited earlier deposited by the appellants as per the order dated 09.09.2021 passed by learned Sessions Court.

2. Brief facts of the present case are as under: 2.1 That the Resp. no.2 - complainant is the proprietor of Nirupama Enterprise and is doing business of waste firewood, colour chemicals and clothes. Applicant No.1 is doing its business of textiles processing i.e. colour work of clothes and other processes on clothes. That, applicants No.2 to 4 are the Directors of applicant No.1. That, the applicants purchased the goods i.e. waste firewood, colour chemicals and clothes from the complainant. That the said goods were supplied by the complainant on a credit basis and in lieu of that a cheque of Rs. 20 lacs bearing No.648482 dated 28.07.2016 drawn on Central Bank of India was given by the applicants to the complainant. When the said cheque was presented by the complainant to his bank, it was returned with the endorsement "funds insufficient'. Thereafter a notice dtd. 22.08.2016 was issued to the applicants, which returned with the endorsement

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"unclaimed" and/or "refused' Thereafter, the complainant filed the complaint before the trial court. The Hon'ble trial court, vide order dated 05.08 2021, was pleased to convict the applicants and awarded a fine of Rs.5,000/-upon applicant no.1 herein and applicants no.2 to 4 were awarded a sentence of one year simple imprisonment. Further, applicants no.2 to 4 were also directed to pay compensation equivalent to the cheque amount as per section 357 of CrPC and in default to under 2 months simple imprisonment.

2.2 Being aggrieved by the said judgment and order, the applicants preferred an appeal under section 374 of Code of Criminal Procedure, 1973 before the Hon'ble City Sessions Court, Ahmedabad, being Criminal Appeal No. 151 of 2021. The applicants also preferred an application at Exh.4 under section 389 of the Code of Criminal Procedure, 1973 to suspend the sentence imposed by the learned trial court pending the said appeal. The said application for suspension of the sentence came to be allowed by the learned appellate court vide order dated 09.09.2021 upon imposing certain terms and conditions. That, while suspending the sentence pending the said appeal, the learned appellate court was pleased to release the applicant nos.2 to 4 on bail on a condition of depositing 20% of the cheque amount within 30 days. The said condition

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came to be imposed by exercising the powers of the appellate court by invoking section 148 of the Negotiable Instruments Act. The applicants deposited the said amount before the learned appellate court and presently also the same is lying with the learned appellate court. Thereafter, the appeal proceeded and the learned appellate court, vide order and judgment dated 16.07.2022, was pleased to allow the said appeal by quashing and setting aside the order and judgment of conviction passed by the learned trial court and further the learned appellate court was pleased to remand back the said case and also permitted the appellants to cross-examine the complainant and to lead evidence on certain terms and conditions. That, the learned appellate court also imposed a stringent condition no. IV directing the applicants to deposit further 20% of the cheque amount before the learned appellate court within a period of 15 days from the passing of the order. Hence, by way of present application, applicants have challenged the said judgment and order.

3. Heard learned advocates for the respective parties.

4. It was submitted by learned advocate for the applicants that the condition no. IV imposed by the learned appellate court is against the established principles of law. That, the learned appellate court, while suspending the sentence had

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already directed the applicants to deposit 20% of the cheque amount, and the same has been deposited by the applicants. The said condition came to be imposed by exercising the powers of the appellate court by invoking section 148 of the Negotiable Instruments Act. Hence there is no justifiable grounds upon which the learned appellate court imposed the said condition for further depositing 20% of the cheque amount. That, Section 148 of the Negotiable Instruments Act, 1881, provides for the power of the appellate court to order payment pending an appeal against conviction and as per the said provision, it makes it clear that the appellate court has the power to order payment only pending appeal. In the present case, the learned appellate court pending the said appeal, vide order dated 09.09.2021, had already directed the applicants to deposit 20% of the cheque amount by invoking the aforesaid provision and the same was also deposited by the applicants. Subsequently, while disposing off the said appeal, the learned appellate court did not have jurisdiction to direct the applicants to deposit a further 20% of the cheque amount in addition to the 20% already deposited and hence ought not to have imposed the said condition. Section 148 of the Negotiable Instruments Act, 1881 reproduced as under:

Section 148 : Power of Appellate Court to order payment

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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 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.]

While perusing the said provision, it appears that the said

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provision can be invoked only when there is conviction, but in the present case, the learned appellate court has set aside the conviction and hence the provision can not be invoked subsequently. That, learned appellate court has set aside the order and judgment of conviction and have remanded the matter back to the learned trial court. Hence the learned appellate court was bound to return the 20% cheque amount earlier deposited by the applicants vide order dated 09.09.2021, but the learned appellate court directed the applicants to further deposit 20% of the cheque amount, which is untenable. That, now if again 20% of the cheque amount is deposited then it would amount to depositing 40% of the total cheque amount. That, if the said judgment and order of the learned appellate court dated 16.07.2022 is perused then the same does not deal with the merits of the transactions between the applicants and the Respondent no.2, but deals only with the valuable right of defence that has been closed. Therefore the said case came to be remanded back to the learned trial court. Hence, it was submitted by learned advocate for the applicants to allow present application.

5. On the otherside, learned advocate for the respondent no.2 has strongly objected the submissions made by learned advocate for the applicants and submitted that respondent no.2

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filed about 16 complaints against the applicants under the NI Act in the year 2016. That, learned Additional Sessions Judge, while imposing the condition of depositing 20% of the cheque amount was pleased to exercise the discretion in the facts and circumstances of the case, and therefore, this Hon'ble Court may not interfere in the discretionary order passed by the learned City Sessions Judge. That, the respondent no.2 is a senior citizen aged about 63 years and is a patient of heart, BP and Asthama and since the year 2016, the respondent no.2 has to run after the above cases which are 16 in numbers. That, against the company, more than 100 cases are pending in different courts of similar nature. Ultimately, it was requested by learned advocate for the respondent no.2 to dismiss present application.

6. Learned APP for the respondent no.1 has requested to pass necessary orders under the provisions of the law of NI Act.

7. Having heard learned advocates for the respective parties and considering the observations made by learned appellate court in the impugned judgment, it appears that learned appellate court vide order dated 16 th July 2022, quashed the order and judgment of conviction and sentence passed by the trial court and remanded back the matter to the learned trial court with certain conditions wherein conditions no. III and IV

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are as under:

"III. It is made clear that only one effective opportunity is given to the appellants for the cross examination of the complainant and only two effective opportunities to lead their evidence. The case shall be decided on or before 31 st December 2022.

IV. It is further directed that the appellants to deposit 20% of the cheque amount with the Nazir of this Court within a period of 15 days from the passing of this order. It is made clear that this 20% amount of the cheque shall be in addition to the 20% already deposited by the appellants as per the order dated 09.09.2021 passed by learned Sessions Court."

8. It appears from the record that at the time of filing appeal before the learned appellate court, applicants have deposited 20% of the cheque amount as per the provisions of the law and while remanding back the learned appellate court directed to deposit additional 20% of the cheque amount but, when 20% of the cheque amount is already deposited by the applicants by showing their bonafides then this court is of the opinion that no more 20% of the cheque amount in addition to earlier 20% of the cheque amount deposited by the applicants is required to be deposited by the applicants and even the matter was

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remanded back to the learned trial court, then there is no need to keep such earlier deposited 20% of the cheque amount with the learned appellate court.

9. Thus, while considering the observations made by learned appellate court and considering the provisions of the NI Act as well as legal ratio laid down by the Hon'ble Apex Court, the condition No. IV imposed in the order dated 16 th July 2022 passed by learned Additional Sessions Judge, Court No. 10, City Sessions Court, Ahmedabad in Criminal Appeal No. 151 of 2021 stands quashed and set aside and 20% of the cheque amount, which was deposited by the applicants- original accused, is required to be returned back to the applicants-original accused. Rest of the portion of the impugned order dated 16th July 2022 passed by learned Additional Sessions Judge, Court No. 10, City Sessions Court, Ahmedabad in Criminal Appeal No. 151 of 2021 shall be remained intact.

10 With aforesaid observations, present application stands disposed of. Rule is made absolute to the aforesaid extent.

(SAMIR J. DAVE,J) K. S. DARJI