Smt. Shyama vs Balaji Fertilizers Sendhwa ...
2023 Latest Caselaw 12199 MP

                                                              1
                            IN     THE        HIGH COURT OF MADHYA PRADESH
                                                    AT INDORE
                                                     BEFORE
                                  HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                                                  ON THE 1 st OF AUGUST, 2023
                                            MISC. CRIMINAL CASE No. 31311 of 2023

                           BETWEEN:-
                           SMT. SHYAMA W/O LATE SUNANDA BANERJEE, AGED
                           ABOUT 49 YEARS, OCCUPATION: HOUSEHOLD WORK
                           QUEENS COLLEGE, INDORE (MADHYA PRADESH)

                                                                                            .....APPLICANT
                           (SHRI SUNIL KUMAR SONI, LEARNED COUNSEL FOR THE APPLICANT.)

                           AND
                           BALAJI    FERTILIZERS    SENDHWA   THROUGH
                           PROPRIETOR VIJAY S/O SATYANARAN KHANDELWAL,
                           AGED ABOUT 55 YEARS, OCCUPATION: BUSINESS
                           HIGHER SECONDARY SCHOOL KE SAMNEY, SENDHWA
                           DISTRICT BARWANI (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                           (NONE FOR THE RESPONDENT.)

                                 This application coming on for admission this day, the court passed the
                           following:
                                                               ORDER

This petition u/s 482 of Cr.P.C. is filed by the applicant/ appellant being aggrieved and dissatisfied from the order dated 03/07/2023 passed by the

appellate court/ IIn d Additional Sessions Judge, Sendhwa, Distt,- Badhwani (M.P.) in S.T. no. 79/2023 whereby the learned appellate court suspended the sentence of the appellant and granted him bail with condition that the applicant/ appellant deposit 20% (Rs.1,66,750/-) of compensation amount of Rs.8,33,750/-.

Signature Not Verified

2. Brief fact of the case is that the respondent/ complainant had filed a Signed by: AJIT KAMALASANAN Signing time: 02-08-2023 18:43:12

private complaint u/s 138 of Negotiable Instrument Act, 1881 (hereinafter referred as "the act") against the applicant before Judicial Magistrate First Class, Sendhwa, Badhwani which was registered as SC NIA/502054/2016. The trial court had passed judgment on 24/06/2023 and convicted the applicant u/s 138 of the act. Thereby the applicant was sentenced to simple imprisonment for 1 year and in addition has awarded compensation of Rs.8,33,750/- in favour of the respondent and against the applicant u/s 357(3) of Cr.P.C. with default stipulation of 6 months simple imprisonment.

3. The applicant has filed appeal against the judgment passed by learned trial court and applicant has also filed an application u/s 389 of Cr.P.C. for

suspension of sentence and grant of bail. Learned appellate court has allowed the application and has suspended the sentence of the applicant and granted bail in her favour as well as learned appellate court has directed the applicant to deposit 20% of compensation amount within 30 days before the learned trial court.

4 . Learned counsel for the applicant submits that, the applicant is a widow. At present she does not have sufficient amount to deposit the compensation amount. The applicant has also filed an application for exemption from payment of fine, but the aforesaid application was rejected by the appellate court. The applicant is hopeful to succeed in appeal. If within the stipulated period i.e. 30 days, the applicant fails to deposit 20% of compensation amount, she will be sent back to jail. The applicant is ready to deposit compensation amount if she fails in the appeal. Therefore, it is prayed that order of appellate court to deposit 20% of compensation amount be stayed till disposal of appeal.

Heard learned counsel for the applicant and perused the records. Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 02-08-2023 18:43:12

6. It appears to be pertinent to reproduce Section 148 of the act, which runs as under:-

"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 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.]

7. Though, Section 148 of the act was introduced by the amendment act of 2018 with effect from 01/09/2018, while the instant case, complaint u/s 138 was filed on 21/10/2016 i.e. prior to the aforesaid amendment. In this respect, the Apex court in the case of Surindar Singh Deswal alias Colonel S.S.

Deswal And Ors. Vs. Virendar Gandhi And Anr. [(2020) 2 SCC 514] held in paragraph 16 as under:-

"16. The judgment of this Court which was delivered in the case of the present appellants i.e. Criminal Appeal Nos.917-944 of 2019 (Surinder Singh Deswal @ Col. S.S. Deswal and others vs. Virender Gandhi) (in which one of us M.R.Shah, J was also a member) was also cited before the Bench deciding the case of Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 02-08-2023 18:43:12

G.J. Raja. This Court in its judgment dated 29.05.2019 has rejected the submission of the appellants that Section 148 of N.I. Act shall not be made applicable retrospectively. This Court held that considering the Statement of Objects and Reasons of the amendment in Section 148 of the N.I. Act, on purposive interpretation of 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."

8. From the foregoing analysis, it is clear that Section 148 of the act is applicable retrospectively. Therefore, the appellate court has rightly had directed the applicant/ appellant to deposit 20% of the total compensation amount before the trial court. So far as the period of 30 days given by the appellate court to the applicant is erroneous to deposit compensation amount before the trial court, as per Section 148 of the act, maximum period of 90 days can be given to the applicant to deposit the 20% amount of compensation but the appellate court has given only 30 days.

9 . Consequently, the petition is partly allowed and impugned order is modified to the extent that applicant/ appellant shall deposit the aforesaid 20% amount of the compensation before trial court within 90 days from date of impugned order i.e. 03/07/2023. The petition is disposed off accordingly.

(PRAKASH CHANDRA GUPTA) JUDGE ajit

Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 02-08-2023 18:43:12