Himachal Pradesh High Court

Tehsil Sujanpur vs State Of Himachal Pradesh on 20 October, 2022

Bench: Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 20TH DAY OF OCTOBER, 2022

BEFORE

HON'BLE MR. JUSTICE SANDEEP SHARMA

.
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO. 989 OF 2022

Between:-

SHRI PARVEEN THAKUR

(AGED: 55 YEARS)
ALLEGED AUTHORIZED SIGNATORY OF
L-13 GODOWN (WRONGLY MENTIONED AS DODOWN IN THE
IMPUGNED ORDER)
OF M/S RANGAR BREWERIES LIMITED,

INDUSTRIAL AREA MEHATPUR,
DISTRICT UNA (HP)
IN FACT- SHRI PRAVEEN THAKUR
SON OF SHRI RAN SINGH,
RESIDENT OF VILLAGE BHAGOL, P.O. PATLANDER

TEHSIL SUJANPUR, DISTRICT HAMIRPUR (HP)
PETITIONER

(BY MR. NEERAJ GUPTA, SENIOR ADVOCATE
WITH MS. RINKI KASHMIRI, ADVOCATE)

AND

1. STATE OF HIMACHAL PRADESH
THROUGH ASSISTANT EXCISE AND TAXATION OFFICER,
HAMIRPUR (HP)
THROUGH PUBLIC PROSECUTOR HAMIRPUR (HP)

COMPLAINANT/RESPONDENT
2. M/S RANGER BREWERIES LIMITED,
INDUSTRIAL AREA MEHATPUR,

DISTRICT UNA (HP),
THROUGH SHRI NEERAJ TYAGI, SENIOR MANAGER
(COMMERCIAL0

MS/ RANGAR BREWERIES LIMITE,D,
INDUSTRIAL AREA MEHATPUR,
DISTRICT UNA (HP)
PROFORMA RESPONDENT
(MR. NARENDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL
FOR R-1)
(NEMO FOR R-2)

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2

This petition coming on for orders this day, the court passed the following:

O R D E R

By way of instant petition filed under S. 482 CrPC, challenge

has laid to order dated 1.10.2022 passed by learned Additional Sessions

Judge, Hamirpur, Himachal Pradesh in CrMA No. 356 of 2022, inasmuch as

petitioner/accused has been directed to deposit 30% of composition amount

in lieu of suspension of sentence imposed by learned trial Court.

2. Notice. Mr. Narinder Guleria, learned Additional Advocate General

accepts notice on behalf of respondent No.1.

3. Learned Additional Advocate General states that as per S. 148 of

Negotiable Instruments Act, amended on 2.8.2018, court hearing appeal

against judgment of conviction and order of sentence can always direct

accused to deposit upto minimum of 20% of the entire fine/compensation

awarded by learned trial Court in lieu of suspension of sentence, within two

months. He states that since in the case at hand amount of compensation is

Rs.40.00 Lakh, no illegality can be said to have been committed by learned

court below, while directing accused to deposit 30% of compensation amount

in lieu of suspension of sentence.

4. Having heard learned counsel for the parties and perused material

available on record vis-à-vis reasoning assigned in the impugned order, this

court finds that appellate court, while suspending substantive sentence

imposed by learned trial Court was well within its jurisdiction to direct the party

seeking suspension of substantive sentence, to deposit minimum of 20% of

compensation/fine amount awarded by learned trial Court. Careful perusal of

S. 148 of Act, leaves no room for doubt that at the time of considering prayer

for suspension of sentence imposed by learned trial Court, appellate court is

not estopped from imposing condition of deposit of minimum of 20% of

compensation amount.

5. At this stage, learned senior counsel for petitioner argued that since

complaint in the case at hand was filed prior to amendment in S.148 of the

Negotiable Instruments Act, aforesaid condition could not be made applicable

in the case at hand. Amended S.148 Negotiable Instruments Act, reads as

under:

148. (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.''.

6. However, this court finds no merit in the aforesaid submission in

view of judgment of Hon'ble Apex Court in Surinder Singh Deswal v.

Virender Gandhi, (2019) 11 SCC 341, wherein it has been held that even if

original complaint is filed prior to amendment of S. 148 of the Act, appellate

court can exercise power under S. 148 to direct accused to deposit minimum

20% of compensation. It has been held by Hon'ble Apex Court in Surinder

Singh Deswal supra, 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 Code of Criminal Procedure 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 Code of Criminal Procedure, 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 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.

8. Now so far as the submission on behalf of the Appellants that even considering the language used in Section 148 of the N.I. Act as amended, the appellate Court "may" order the Appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court and the word used is not "shall" and

therefore the discretion is vested with the first appellate court to direct the Appellant - Accused to deposit such sum and the appellate court has construed it as mandatory, which according to the learned Senior Advocate for the Appellants would be contrary to the provisions of Section 148 of the N.I. Act as amended is concerned, considering

the amended Section 148 of the N.I. Act as a whole to be read with the Statement of

Objects and Reasons of the amending Section 148 of the N.I. Act, though it is true that in amended Section 148 of the N.I. Act, the word used is "may", it is generally to be construed as a "rule" or "shall" and not to direct to deposit by the appellate court is an exception for which special reasons are to be assigned. Therefore

amended Section 148 of the N.I. Act confers power upon the Appellate Court to pass an order pending appeal to direct the Appellant-Accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed

by the original complainant or even on the application filed by the Appellant-Accused Under Section 389 of the Code of Criminal Procedure to suspend the sentence. The

aforesaid is required to be construed considering the fact that as per the amended Section 148 of the N.I. Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be

deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the Appellant. Therefore, if amended Section 148 of the N.I. Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the N.I. Act, but also Section 138 of the N.I. Act. Negotiable Instruments Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of the dishonoured of cheques. So as to see that due to delay tactics by the unscrupulous drawers of the dishonoured 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 realise the value of the cheque and having observed that such delay has compromised the sanctity of the cheque transactions, the Parliament has thought it fit to amend Section 148 of the N.I. Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the N.I. Act and also Section 138 of the N.I. Act."

7. Consequently in view of above, though this court finds no merit in

the present petition, however, having taken note of the fact that the petitioner

has a huge liability to pay the compensation, this court deems it fit to modify

the order dated 1.10.2022 passed by learned Additional Sessions Judge,

Hamirpur, Himachal Pradesh in CrMA No. 356 of 2022, to the extent that the

petitioner shall deposit 20% of the compensation amount within a period of

two months from the date of order.

8. The petition stands disposed of in the afore terms alongwith all

pending applications.

(Sandeep Sharma), Judge October 20, 2022

(vikrant)