Madhya Pradesh High Court
Arjun Kukreja vs M/S Vikas Trasnport Propreitorship ... on 19 December, 2023
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 19 th OF DECEMBER, 2023
CRIMINAL REVISION No. 607 of 2023
BETWEEN:-
ARJUN KUKREJA S/O THADHOMAL KUKREJA, AGED 80
YEAR S , OCCUPATION: BUSINESS SHANTI NIKETAN
COLONY INDORE (MADHYA PRADESH)
.....APPLICANT
(BY SHRI VIJAY KUMAR ASUDANI - ADVOCATE)
AND
M/S VIKAS TRASNPORT PROPRIETORSHIP FIRM
THROUGH ITS PROPRIETOR SHRI VIKAS TORANI S/O
RAMESH TORANI 03 DUBEY COLONY INDORE
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI PANKAJ SONI - ADVOCATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
This revision petition under section 397 read with Section 401 of Cr.P.C.
has been filed by applicant being aggrieved by impugned order dated 19.1.2023
passed by 20th Additional Sessions Judge Indore whereby the appellate court
while passing order in an application under section 389 Cr.P.C. against the
order of conviction and sentence under section 138 of Negotiable Instruments
Act suspended the jail sentence of applicant on the condition that the applicant
shall deposit 20% of the compensation amount i.e. Rs. 3,42,311/- within the
period of two months from the date of order passed by the trial court.
2. Learned counsel for applicant submits that such condition could not
have been imposed by appellate court while suspending the jail sentence as the
same is contrary to Section 357(2) of Cr.P.C. In support of his submission,
learned counsel placed reliance upon order of Bombay High court in the case of
Ajay Vinodchandra Shah Vs. State of Maharashtra reported in 2019(4)
MHLJ 705.
3. On the other hand learned counsel for respondent opposes the prayer
b y submitting that the impugned order passed by the first appellate court is
according to law and no interference is required. He has placed reliance upon
judgment of Hon'ble Apex court in the case of Surinder Singh Deswal alias
Col. S.S. Deswal Vs. Virender Gandhi reported in AIR 2019 SC 2956.
4. Heard learned counsel for the parties and perused the record.
5. From perusal of the record of the trial court as well as the impugned
order passed by the first appellate court, it appears that under section 138 of
Negotiable Instruments Act, there is a specific provision that court has
empowered to punish the accused with jail sentence which may be extended to
two years or with fine which may extend to twice the amount of the cheque or
with both.
6. In the instant case the amount of disputed cheque is Rs. 8,58,535/- and
total payable amount with interest is 17,11,557/-. The Hon'ble Apex court in the
case of Surinder Singh Deswal (supra) has held as under:-
9. 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 i s vested w i th t h e 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 b y 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 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."
10. Now so far as the submission on behalf of the appellants,
relying upon Section 357(2) of the Cr.P.C. that once the appeal
against the order of conviction is preferred, fine is not
recoverable pending appeal and therefore such an order of
deposit of 25% of the fine ought not to have been passed and in
support of the above reliance placed upon the decision of this
Court in the case of Dilip S. Dhanukar (supra) is concerned, the
aforesaid has no substance. The opening word of amended
Section 148 of the N.I. Act is that "notwithstanding anything
contained in the Codeof Criminal Procedure.....". Therefore
irrespective of the provisions o f Section 357(2) of the Cr.P.C.,
pending appeal before the first appellate court, challenging the
order of conviction and sentence under Section 138 of the N.I.
Act, the appellate court is conferred with the power to direct the
appellant to deposit such sum pending appeal which shall be a
minimum of 20% of the fine or compensation awarded by the trial
Court.
In view of the above and for the reasons stated herein above,
impugned Judgment and Order passed by the High Court does not
call for any interference.
7 . In view of the law laid down by the Hon'ble Apex court, the first
appellate court is conferred with the power to direct the applicant to deposit
such amount pending appeal which shall be minimum 20% of fine or
compensation awarded by the trial court.
8. Therefore, the impugned order dated 19.1.2023 passed by the first
appellate court appears to be just and proper which does not suffer from any
illegality or irregularity.
9 . Hence this criminal revision petition is accordingly dismissed by
affirming the order passed by the first appellate court. The applicant is directed
to deposit the said amount before the trial court within a period of one month
from the date of receipt of certified copy of this order.
Registry is directed to send the record of the court below.
(ANIL VERMA)
JUDGE
BDJ
