Prakash Vinodchandra Jaiswal vs State Of Gujarat
2023 Latest Caselaw 3358 Guj

     R/CR.RA/519/2023                            ORDER DATED: 26/04/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


R/CRIMINAL REVISION APPLICATION NO. 519 of 2023


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            PRAKASH VINODCHANDRA JAISWAL
                          Versus
                   STATE OF GUJARAT
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Appearance:
MR VEDANT D GAIKWAD(10444) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                        Date : 26/04/2023

                          ORAL ORDER

1. Rule, returnable forthwith. Learned Additional Public

Prosecutor waives service.

2. Heard, learned advocate Mr. Vedant Gaikwad for the

revisionist and the learned Additional Public Prosecutor for

the respondent - State.

3. Challenge in this revision application is to the condition

Nos. 4, 5 and 6 laid down in the judgment and order dated

R/CR.RA/519/2023 ORDER DATED: 26/04/2023

01.04.2023 passed by the learned 4th Additional Sessions

Judge, Vadodara in Criminal Appeal No. 69 of 2022 whereby,

while allowing the appeal filed by the present revisionist and

setting aside the judgment and order of conviction and

sentence dated 24.08.2021 passed in Criminal Case No.

31722 of 2017 by the learned Judicial Magistrate First Class,

Vadodara and remanding the matter back, to be decided on

merits, the learned Additional Sessions Judge imposed

certain conditions.

4. The learned advocate for the revisionist submitted that

during the institution of appeal, 20% of the cheque amount,

which comes to about Rs.3 lakh, was deposited before the

appellate Court and vide order below exh. 8, passed on

24.01.2023, the said amount of Rs.3 lakh was disbursed to

the complainant. He submitted that the amount was

deposited and disbursed, however, the learned 4 th Additional

Sessions Judge, Vadodara in Criminal Appeal No. 69 of 2022

has further passed an order of depositing 30% of cheque

amount besides direction to pay Rs.15,000/- to the

complainant towards costs and litigation expenses. He

R/CR.RA/519/2023 ORDER DATED: 26/04/2023

submitted that said order would be onerous as it was with

further condition that in case of failure to deposit said 30%

amount, the trial Court is directed not to consider the matter

as remanded back and to proceed further by issuing the

conviction warrant.

4.1 Referring to the provisions of Section 148 and further

of Section 143A of the Negotiable Instruments Act, 1881 (NI

Act), it is submitted that when any appeal is pending against

conviction, as provided under Section 148, 20% of the fine

or compensation awarded by the trial Court, can be ordered

to be deposited by the appellant. Under Section 143A of the

NI Act, the learned advocate for the revisionist submitted by

referring to the Rojnama of the trial Court that no order was

passed by the trial Court which would absolutely fall under

the jurisdiction of the trial Court.

4.2 The learned advocate for the revisionist submitted that

since 20% amount was already deposited while preferring

the appeal and disbursed to the complainant, such an order

R/CR.RA/519/2023 ORDER DATED: 26/04/2023

by the appellate Court would almost amount to denying

justice to the revisionist since no proceedings on merits

would be conducted on failure of the revisionist to deposit

30% amount before the trial Court.

5. Per contra, learned Additional Public Prosecutor for the

respondent - State submitted that the orders so passed by

the learned appellate Judge is to ensure that the appellant -

accused would pay the fine amount or the cheque amount

so as to get liability reduced and the aggrieved complainant

would have recourse to recover the amount. Thus, she

submitted that the application be rejected.

6. Section 148 empowers the appellate Court to direct the

accused - appellant to deposit 20% of the fine or

compensation awarded by the trial Court. Here, in this

case, the said order was passed during the course of appeal

and the amount was disbursed by an order below exh. 8

passed on 24.01.2023 to the complainant. The provision of

directing the appellant to deposit 20% amount, in fact,

reduces the liability of the appellant - convict but such

R/CR.RA/519/2023 ORDER DATED: 26/04/2023

orders for directing the payment is, as provided, could be

passed by the appellate Court, but once such order has been

passed, the accused cannot be further ordered to pay such

an amount as that would amount to double whammy and

such harshness has not been anticipated in the provisions

under Section 148 of the NI Act.

6.1 Further, Sub-section (5) of Section 143A of the NI Act

lays down procedure for recovery of the interim

compensation payable under Section 143A, as provided

under Section 421 of the Criminal Procedure Code, 1973

(CrPC) as if, it were a fine. The conditional order of the

appellate Judge to proceed under conviction warrant in

failure of depositing 30% itself would bring a contradictory

consequences to the learned appellate Judge's order of

remanding the matter back and to decide the same on

merits. The said condition would prejudice the accused and

would further lead to failure of justice since the order under

Section 148 of the NI Act has been passed and complied

with, thus, the condition Nos. 5 and 6 imposed, as aforesaid,

do not stand in the eye of law and the revision application

R/CR.RA/519/2023 ORDER DATED: 26/04/2023

requires favourable consideration.

7. For the foregoing discussion and observation, the

revision application succeeds and is allowed in part. The

condition Nos. 5 and 6, as laid down in the judgment and

order dated 01.04.2023 passed by the learned 4 th Additional

Sessions Judge, Vadodara in Criminal Appeal No. 69 of 2022

is hereby deleted. Rest of the judgment and order would

follow. Rule is made absolute accordingly.

[ Gita Gopi, J. ] hiren /10