Pradep Singh Kushwaha vs Nitesh Chore
2023 Latest Caselaw 17418 MP

                                  1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT INDORE
                            BEFORE
                HON'BLE SHRI JUSTICE VIVEK RUSIA
                    ON THE 17 th OF OCTOBER, 2023
               MISC. CRIMINAL CASE No. 12233 of 2023

BETWEEN:-
PRADEP SINGH KUSHWAHA S/O SHIVNARAYAN SINGH
KUSHWAHA, AGED ABOUT 62 YEARS, OCCUPATION:
RETIRED 72, PILWAS COLONY, NALKHEDA, DISTRICT
AGAR MALWA (MADHYA PRADESH)

                                                                .....APPLICANT
(BY SHRI PRIYVRAT SINGH CHOUHAN-ADVOCATE)

AND
NITESH CHORE S/O KAILASHCHAND CHORE VILLAGE
DOVDA, TEHSIL BHIKANGAWN, DISTRICT KHARGONE
(MADHYA PRADESH)

                                                            .....RESPONDENTS
(BY SHRI ANIRUDH SAXENA- GOVERNMENT ADVOCATE)

      This application coming on for orders this day, th e court passed the
following:
                                   ORDER

The applicant has filed the present petition under Section 482 challenging the order dated 10.02.2023 passed by Additional Session Judge, Susner has dismissed the MJC No.13/23 which has resulted into taking away the right to file Criminal Appeal against the conviction under Section 138 of N.I. Act.

2. Vide judgment dated 28.11.2023 passed by SCNIA No.167/2015 by Judicial Magistrate First Class, Susner has convicted applicant/respondent therein for the offence punishable under Section 138 of N.I. Act. Against which, this applicant has preferred an Criminal Appeal under Section 374 (3) of

Cr.P.C. which was initially registered as MJC No.13/23 in place of Criminal Appeal on 28.12.2022. Thereafter the case was directed to be listed on 30.01.2023 on arguments for registration of Case. On 30.01.2023 arguments were heard, thereafter, vide order dated 10.02.2023, the registration of Criminal Appeal has been declined due to non compliance of Section 148 of N.I. Act.

3. The procedure adopted by the learned Additional Session Judge is unique which is neither available in the N.I.Act nor in the Cr.P.C. After conviction, every accused has right to file Appeal before the Appellate Court and same is liable to be registered as Criminal Appeal for which no preliminary arguments are required.

4. So far as non compliance of the provision of Section 148 of N.I. Act is concerned which mandates deposit upto 20 % of the fine amount for which Appellate Court may order in Criminal Appeal to deposit such sum which shall be minimum of 20 % of the fine amount fine amount. The said amount shall be deposited within 30 30 days. The apepllant is not required to deposit 20 % fine amount in advance alongwith an Criminal Appeal. The learned Additional Sessions Judge has wrongly interpreted the provision of Section 148 of N.I. Act. The Appellate Court was required to admit the Appeal and call the record and thereafter may pass an order to deposit the fine amount under Section 148 of N.I. Act as per facts and circumstances of the case.

5. In view of above, order dated 10.02.2023 is set aside, the matter is remanded back to Appellate Court with direction to register the Memo as Criminal Appeal and pass the fresh order under Section 148 of N.I. Act.

C.C. today.

Office is directed to send this order to the concerned Court through faster mode.

(VIVEK RUSIA) JUDGE Praveen

Digitally signed by PRAVEEN Date: 2023.10.17 17:35:59 +05'30'