M/S. Sarala Madan vs Sanjeeb Kumar Biswal .... Opposite ...
2024 Latest Caselaw 16441 Ori

Orissa High Court

M/S. Sarala Madan vs Sanjeeb Kumar Biswal .... Opposite ... on 8 November, 2024

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                     CRLMC No.806 of 2024
                 M/s. Sarala Madan                   ....              Petitioner(s)
                 Infrastructure Projects (P)
                 Ltd., Bhubaneswar
                                                 Mr. B. B. Champatiray, Advocate

                                               -versus-

             Sanjeeb Kumar Biswal                    ....        Opposite Party(s)
                                                      Mr. D. K. Sahoo, Advocate



                      CORAM: JUSTICE SIBO SANKAR MISHRA

                                          ORDER

08.11.2024 Order No.

03. 1. Heard.

2. The petitioner is aggrieved by the order dated 28.02.2024 passed by the learned Sessions Judge, Kendrapara in Criminal Appeal No.05 of 2024, whereby the learned Court below has directed the petitioner to deposit 20% of the compensation amount while admitting the Appeal.

3. The petitioner has been convicted by the learned S.D.J.M., Kendrapara in 1.C.C. Case No.259 of 2019 for the offence under Section 138 of the N.I. Act. Against the said judgment of conviction and order of sentence, the petitioner preferred the Appeal being in Criminal Appeal No.05 of 2024 before the Court the learned Sessions Judge, Kendrapara. Vide impugned order dated 28.02.2024, the learned Appellate Court directed the petitioner to deposit 20% of the compensation amount within the stipulated time

framed in accordance with provision under section 148-A of NI Act.

4. Learned counsel for the petitioner by relying upon the order dated 01.07.2024 passed by the coordinate Bench of this Court in CRLMC No.2260 of 2024 submitted that the coordinate Bench in the similar circumstances has set aside the order of the Appellate Court directing the convict-petitioner in that case to deposit 20% of the compensation amount only on the ground that the Appellate Court had not considered the judgment of the Hon'ble Supreme Court in the case of Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd. & Ors. in Criminal Appeal No.2741 of 2023.

5. I have perused the order dated 01.07.2024 passed by the coordinate Bench of this Court. The coordinate Bench indeed by relying upon the judgment of the Hon'ble Supreme Court in the case of Jamboo Bhandari (supra) has stated that the statutory provision contained under Section 148 of the N.I. Act is not mandatory, it is directory in nature. Therefore, while setting aside the order of direction to depositing 20% of the compensation amount, the Court relegated the convict-petitioner to the Appellate Court to move a fresh application to be decided by relying upon Jamboo Bhandari (supra).

6. I have perused the impugned order dated 28.02.2024 in the instant case. The learned Appellate Court has meticulously dealt with the provisions of law and the judgment of the Hon'ble Supreme Court in the case of Jamboo Bhandari (supra). I find no reason to disagree with the order passed by the learned Sessions Judge, Kendrapara in the instant case. However, taking into

consideration the financial stress of the convict-petitioner, I am of the considered view that the petitioner should deposit 10% of the compensation amount to begin with and move appropriate application before the Appellate Court for variation of the impugned order in so far as the remaining 10% of the compensation amount as directed to be deposited by him. If such application is moved, the same shall be considered by the learned Court below keeping in view the prima-facie merits of the case in Appeal and the financial health of the petitioner.

7. With this observation, the CRLMC is partially allowed.

(S.S. Mishra) Judge Swarna

Location: High Court of Orissa