Punjab-Haryana High Court
Gurmail Singh vs Gurdev Singh Chera on 19 March, 2024
Neutral Citation No:=2024:PHHC:038923
CRM-M-14245-2024 -1-
2024:PHHC:038923
120
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-14245-2024 (O&M)
Date of decision: 19.03.2024
Gurmail Singh
... Petitioner
Vs.
Gurdev Singh Chera
... Respondent
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Chandan Singh Rana, Advocate
for the petitioner.
*******
HARPREET SINGH BRAR, J. (ORAL)
1. The present petition has been filed under Section 482 Cr.P.C. for
quashing the order dated 11.01.2024 (Annexure P-3) passed by the learned
Additional Sessions Judge, SBS Nagar, in Criminal Appeal No.4 of 2024
dated 11.01.2024 titled as 'Gurmail Singh Vs. Gurdev Singh Chera' in
Criminal Complaint No.NACT/156/2020 dated 17.06.2020 under Section
138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act') titled as
'Gurdev Singh Chera Vs. Gurmail Singh', whereby the petitioner has been
ordered to deposit 20% of the compensation amount awarded by the learned
trial Court within a period of 60 days.
2. In brief, facts of the case are that a complaint was filed by the
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respondent-complainant through his Power of Attorney Deepak Sethi,
against the petitioner under Section 138 of N.I. Act on the allegation that he
is a property dealer and the petitioner invested some amount in the property
business. When the respondent-complainant requested the petitioner to settle
the account, he issued a cheque dated 20.09.2019 for an amount of Rs.20.00
lacs in favour of the respondent-complainant. On presentation, the aforesaid
cheque was dishonoured and thereafter, the respondent filed a complaint
under Section 138 of N.I. Act. In January, 2020, the petitioner-accused
entered into a compromise with the respondent-complainant and agreed to
pay total amount of Rs.50.00 lacs and in case of default, he was to pay
Rs.77.00 lacs in the monthly installments of Rs.1.00 lac each. In view of the
compromise, the petitioner issued three cheques bearing No.000061 dated
28.02.2020, No.000062 dated 05.04.2020 and No.000063 dated 05.05.2020.
When the cheque bearing No.000062 dated 05.04.2020 was presented with
Yes Bank Ltd., Nawanshahr on 24.04.2020, same was dishnoured with the
remarks "Funds Insufficient". Thereafter, the respondent-complainant sent a
legal notice on 05.05.2020, however, the petitioner failed to discharge his
legal liability. The respondent-complainant filed the present complaint
under Section 138 of the NI Act, in which the petitioner stood convicted by
the learned Judicial Magistrate 1st Class, SBS Nagar, vide judgment dated
11.12.2023. Against the aforesaid judgment, the petitioner preferred an
appeal before the learned Additional Sessions Judge, SBS Nagar, who, vide
order dated 11.01.2024, directed him to pay 20% of the compensation within
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a period of 60 days, while suspending sentence of the petitioner. Against this
order, the petitioner approached this Court by way of instant petition.
3. Learned counsel for the petitioner inter alia contends that while
allowing the application of the petitioner seeking suspension of sentence,
imposition of condition to deposit 20% of the compensation amount is unjust
and arbitrary and against the proposition of law settled in the judgment
passed by the Hon'ble Supreme Court in Jamboo Bhandari Vs. MP
Industrial Development Corporation Ltd. and others 2013 (12) SCALE
611, wherein it is held that deposit of minimum 20% of the compensation
amount is not an absolute rule. It is further contended that deposit of 20% of
the compensation amount cannot be a condition precedent, while allowing
bail to the petitioner and the learned Appellate Court ought to have
considered the exceptional circumstances for waiving off the said condition.
3. Having heard learned counsel for the petitioner and after
perusing the record of the case, it transpires that the lower Appellate Court
has passed the impugned order without considering the exceptional
circumstances qua imposition of condition of deposit of 20% of the
compensation amount.
4. A two Judge Bench of the Hon'ble Supreme Court in Jamboo
Bhandari's case (supra), speaking through Justice Abhay S. Oka has held as
under:-
"6. What is held by this Court is that a purposive
interpretation should be made of Section 148 of the N.I. Act.
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Hence, normally, Appellate Court will be justified in imposing
the condition of deposit as provided in Section 148. However,
in a case where the Appellate Court is satisfied that the
condition of deposit of 20% will be unjust or imposing such a
condition will amount to deprivation of the right of appeal of
the appellant, exception can be made for the reasons
specifically recorded.
7. Therefore, when Appellate Court considers the prayer
under Section 389 of the Cr.P.C. of an accused, who has been
convicted for offence under Section 138 of the N.I. Act, it is
always open for the Appellate Court to consider whether it is
an exceptional case which warrants grant of suspension of
sentence without imposing the condition of deposit of 20% of
the fine/compensation amount. As stated earlier, if the
Appellate Court comes to the conclusion that it is an
exceptional case, the reasons for coming to the said conclusion
must be recorded."
5. In view of the settled law, the lower Appellate Court was
required to consider whether the present case falls in the exception or not.
Consequently, the impugned order dated 11.01.2024 is set aside to the extent
of imposition of condition of depositing 20% of the compensation amount
and the matter is remanded back to the lower Appellate Court to re-examine
the case after granting an opportunity to the petitioner to make submissions
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regarding the exceptional circumstances, which warrants waiver of the
requirement of deposit of 20% of the compensation awarded by the learned
trial Court, in the light of judgment passed by the Hon'ble Supreme Court in
Jamboo Bhandari's case (supra).
6. The instant petition stands disposed of in above terms.
[ HARPREET SINGH BRAR ]
19.03.2024 JUDGE
vishnu
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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