Punjab-Haryana High Court
Jaivinder vs State Of Haryana And Another on 24 March, 2025
Neutral Citation No:=2025:PHHC:040013
CRM-M-15898-2025 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
138
CRM-M-15898-2025
Decided on : 24.03.2025
Jaivinder . . . Petitioner(s)
Versus
State of Haryana and another . . . Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. Ashok K. Sharma (Bhana), Advocate
for the petitioner(s).
Mr. Kanwar Sanjiv Kumar, AAG, Haryana.
****
SANJAY VASHISTH, J. (Oral)
1. At the outset, learned counsel for the petitioner contends that
since the order dated 07.08.2023 (P-1), whereby, while awarding sentence, a
compensation amount of Rs. 1,50,000/- has been directed to be paid to the
complainant as compensation, and the same is already pending before the
lower Appellate Court, he need not press the said prayer before this Court.
Accordingly, the said prayer is declined as not pressed.
2. Prayer in the present petition filed under Section 528 of BNSS,
2023, is for quashing of the impugned order dated 06.09.2023 (Annexure P-
3), passed by learned Additional Sessions Judge, Jind, in Criminal Appeal
No.CRA/207/2023, titled as 'Jaivinder v. Deepak Kumar', whereby, learned
Court directed the petitioner to deposit 20% of the compensation amount
either in the shape of FDR or in the Court within 60 days from the date of
passing of impugned order.
3. Learned counsel for the petitioner has stated that petitioner was
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prosecuted in a complaint under Section 138 of the Negotiable Instruments
Act, 1881 (for short, 'the Act') and he was convicted by learned Sub
Divisional Judicial Magistrate, Narwana, under Section 138 of the Act, vide
judgment dated 07.08.2023 (P-1) and sentenced to undergo simple
imprisonment for a period of one year and was also ordered to pay
compensation of Rs.1,50,000/- (Rupees One Lac and Fifty Thousand only)
to the complainant (respondent No.2 herein).
Counsel further submitted that challenging the judgment dated
07.08.2023 (P-1), petitioner filed an appeal before the Court of learned
Additional Sessions Judge, Jind and thereupon learned Appellate Court vide
its impugned order dated 06.09.2023 (P-3) suspended the order of sentence
qua petitioner, subject to deposit 20% of the compensation amount in the
shape of FDR with the aid of Section 148 of the Act. Due to the financial
constraints, petitioner failed to comply with the order dated 06.09.2023
(P-3), however counsel submits that even otherwise also, impugned order
dated 06.09.2023 (P-3) passed by the learned Appellate Court is in violation
of the law settled by Hon'ble Supreme Court in Jamboo Bhandari v. M.P.
State Industrial Development Corporation Ltd. and others, 2024(1) SCC
(Cri) 90, wherein it has been held that while considering the prayer under
Section 389 of the Cr.P.C. of an appellant who has been convicted for
offence under Section 138 of the Act, it is always open for the Appellate
Court to consider, whether the appeal before it, is an exceptional case or not,
which warrants grant of suspension of sentence, but without imposing the
condition to deposit 20% of the fine/compensation amount. And, if the
Appellate Court comes to the conclusion that it is an exceptional case, the
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reasons for coming to the said conclusion must be recorded, which is
missing in the present case. It is submitted that learned Court below has not
appreciated the facts of the case and other circumstances of the petitioner, as
per mandate of the Hon'ble Supreme Court in Jamboo Bhandari's case
(supra).
4. After hearing learned counsel for the petitioner and perusing the
record, it is apparent that sentence of the petitioner was suspended by
learned Appellate Court subject to the deposit of 20% of the compensation
amount awarded by learned trial Court. However, petitioner did not comply
with the same.
This Court is of the view that dispute raised through the present
petition can be decided in limine and without calling the other side here,
because the way this Court intends to dispose of the present petition, no
prejudice would be suffered by the complainant qua his rights.
5. This Court finds that the plea of the petitioner is that impugned
order dated 06.09.2023 (P-3), passed by learned Additional Sessions Judge,
Ludhiana, is without adhering to the directions issued by the Hon'ble Apex
Court in Jamboo Bhandari's case (supra), as also in the case of Muskan
Enterprises and another v. The State of Punjab and another, 2024 SCC
Online SC 4107 : Law Finder Doc Id #2680202'.
6. The Hon'ble Apex Court in Jamboo Bahndari case (Supra) and
Muskan Enterprises case (Supra) has laid down certain parameters while
considering Section 148 of the Act for the purpose of interpretation. It has
been held that the object of Section 148 of the Act is not mandatorily to be
followed rather, it is directive and the direction to pay or deposit 20% of the
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compensation amount, which is maximum, is to be passed by the concerned
Court after examining the facts and circumstances of the case before it.
7. In Jamboo Bhandari's case (supra), the view taken by the Hon'ble
Apex Court in an earlier case, i.e. Surinder Singh Deswal v. Virender
Gandhi, (2019) 11 SCC (Cri) 461', has also been discussed, wherein, the
object and reason of the amendment in Section 148 of the Act was discussed.
The observations made in para Nos. 5 to 12 of the judgment in Jamboo
Bhandari's case (supra) are reproduced herebelow:
"5. The paragraph `8' of the decision of this Court in the case
of Surinder Singh Deswal Alias Colonel S.S. Deswal and Others (2019)
11 SCC 341 reads thus: -
"8. Now so far as the submission on behalf of the
appellants that even considering the language used in
section 148 of the NI 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 is
vested with the first 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 NI Act as amended is
concerned, considering the amended section 148 of the
NI Act as a whole to be read with the Statement of
Objects and Reasons of the amending section 148 of the
NI 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 NI 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 by the
appellant-accused under section 389 Cr.P.C., 1973 to
suspend the sentence. The aforesaid is required to be
construed considering the fact that as per the amended
section 148 of the NI 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
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shown by the appellant. Therefore, if amended
section 148 of the NI Act is purposively interpreted in
section 148 of the NI Act, but also section 138 of the NI
Act. The 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 dishonour
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. Parliament has thought it fit to amend
section 148 of the NI Act. Therefore, such a purposive
interpretation would be in furtherance of the Objects
and Reasons of the amendment in section 148 of the NI
Act and also section 138 of the NI Act.
6. What is held by this Court is that a purposive interpretation
should be made of section 148 of the N.I. Act. 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., 1973 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.
8. The submission of the learned counsel appearing for the original
complainant is that neither before the Sessions Court nor before the
High Court , there was a plea made by the appellants that an exception
may be made in these cases and the requirement of deposit or minimum
20% of the amount be dispensed with. He submits that if such a prayer
was not made by the appellants, there were no reasons for the Courts to
consider the said plea.
9. We disagree with the above submission. When an accused applies
under section 389 of the Cr.P.C., 1973 for suspension of sentence, he
normally applies for grant of relief of suspension of sentence without any
condition. Therefore, when a blanket order is sought by the appellants,
the Court has to consider whether the case falls in exception or not.
10. In these cases, both the Sessions Courts and the High Court have
proceeded on the erroneous premise that deposit of minimum 20%
amount is an absolute rule which does not accommodate any exception.
11. The learned counsel appearing for the appellants, at this stage,
states that the appellants have deposited 20% of the compensation
amount. However, this is the matter to be examined by the High Court .
12. In these circumstances, we set aside the impugned orders of the
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High Court and restore the revision petitions filed by the appellants
before the High Court . We direct the parties to appear before the roster
Bench of the High Court on 09.10.2023 in the morning to enable the
High Court to fix a date for hearing of the revision petitions. As the
contesting parties are before the Court , it will not be necessary for the
High Court to issue a notice of the date fixed for hearing. The
High Court , after hearing the parties, will consider whether 20% of the
amount is already deposited or not. If the Court comes to the conclusion
that 20% of the amount is not deposited, the Court will re-examine the
Revision Petitions in the light of what we have observed in this
judgment. Till the disposal of the restored Revision Petitions, the interim
order passed by this Court ordering suspension of sentence will continue
to operate.
8. Again, in the case of Muskan Enterprises's case (supra), Hon'ble the
Apex Court has noticed certain additional parameters, which are required to
be looked into in such like cases, which reads thus:
"27. We may take the discussion a little forward to emphasize
our point of view. There could arise a case before the
Appellate Court where such court is capable of forming an
opinion, even in course of considering as to what would be the
appropriate quantum of fine or compensation to be kept in deposit,
that the impugned conviction and the consequent sentence
recorded/imposed by the trial court is so wholly incorrect and
erroneous that it is only a matter of time for the same to be set
aside and that ordering a deposit would be unnecessarily
burdensome for the appellant. Such firm opinion could be formed
on a plain reading of the order, such as, the conviction might have
been recorded and sentence imposed without adherence to the
mandatory procedural requirements of the N.I. Act prior to/at the
time lodging of the complaint by the complainant rendering the
proceedings vitiated, or the trial court might have rejected
admissible evidence from being led and/or relied on inadmissible
evidence which was permitted to be led, or the trial court might
have recorded an order of conviction which is its ipse dixit,
without any assessment/analysis of the evidence and/or totally
mis-appreciating the evidence on record, or the trial court might
have passed an order failing to disclose application of mind and/or
sufficient reasons thereby establishing the link between the
appellant and the offence, alleged and found to be proved, or that
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the compensation awarded is so excessive and outrageous that it
fails to meet the proportionality test : all that, which would evince
an order to be in defiance of the applicable law and, thus, liable to
be labelled as perverse. These instances, which are merely
illustrative and not exhaustive, may not arise too frequently but its
possibility cannot be completely ruled out. It would amount to a
travesty of justice if exercise of discretion, which is permitted by
the legislature and could indeed be called for in situations such as
these pointed out above, or in any other appropriate situation, is
not permitted to be exercised by the Appellate Court by a judicial
interpretation of 'may' being read as 'shall' in sub-section (1) of
Section 148 and the aggrieved appellant is compelled to make a
deposit of minimum 20% of the fine or compensation awarded by
the trial court , notwithstanding any opinion that the
Appellate Court might have formed at the stage of ordering deposit
as regards invalidity of the conviction and sentence under
challenge on any valid ground. Reading 'may' as 'may' leads to the
text matching the context and, therefore, it seems to be just and
proper not to denude the Appellate Court of a limited discretion
conferred by the legislature and that is, exercise of the power of
not ordering deposit altogether albeit in a rare, fit and appropriate
case which commends to the Appellate Court as exceptional.
While there can be no gainsaying that normally the discretion of
the Appellate Court should lean towards requiring a deposit to be
made with the quantum of such deposit depending upon the factual
situation in every individual case, more so because an order under
challenge does not bear the mark of invalidity on its forehead,
retention of the power of such court not to order any deposit in a
given case (which in its view and for the recorded reasons is
exceptional) and calling for exercise of the discretion to not order
deposit, has to be conceded. If indeed the legislative intent were
not to leave any discretion to the Appellate Court , there is little
reason as to why the legislature did not also use 'shall' instead of
'may' in sub-section (1). Since the self-same section, read as a
whole, reveals that 'may' has been used twice and 'shall' thrice, it
must be presumed that the legislature was well and truly aware of
the words used which form the skin of the language. Reading and
understanding the words used by the legislature in the literal sense
does not also result in manifest absurdity and hence tinkering with
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the same ought to be avoided at all costs. We would, therefore,
read 'may' as 'may' and 'shall' as 'shall', wherever they are used in
Section 148. This is because, the words mean what they say.
28. In such view of the matter and for the foregoing reasons, we
are unhesitatingly of the view that the impugned order of the
High Court declining to entertain the subsequent petition under
Section 482, Cr. PC of the appellants is unsustainable in law.
However, we do not consider the need to remit the matter to the
High Court for consideration of the subsequent petition under
Section 482, Cr. PC; instead, in our view, justice would be
sufficiently served if the Sessions Court re-examines the issue of
deposit being required to be made by the appellants in the light of
the law laid down in Jamboo Bhandari (supra) and the
observations made hereinabove.
29. Consequently, the impugned order of the High Court dated
18th May, 2024 and the Sessions Court's order dated 17th October,
2022, stand set aside. The matter is remitted to the
Sessions Court to re-examine the issue of ordering deposit.
Whether sufficient ground has been made out by the appellants to
persuade the Sessions Court not to order any deposit is left entirely
to its discretion and satisfaction. We do not express any opinion on
the plea that the appellants have sought to advance before us, lest
any party seeks to derive any advantage. All points are left open.
9. This Court has already considered the similar plea in CRM-M-
3861-2025, titled as, "M/s Devgan Rice and General Mills v. M/s Jasbir
Bhullar Trading Company and another' (D.O.D.: 28.01.2025), wherein the
non-speaking order, without noticing the directions passed in Jamboo
Bhandari's case (supra) and Muskan Enterprises's case (supra), was assailed
and same has been partly allowed by issuing directions to re-decide the said
issue again in accordance with the law laid down by the Hon'ble Apex
Court.
10. After examining the impugned order dated 06.09.2023 (P-3)
and in view of the judicial precedents settled by Hon'ble Apex Court in
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Jamboo Bhandari's case (supra) and Muskan Enterprises's case (supra),
without commenting anything on the merits of the case, the present petition
is disposed of and learned lower Court (Appellate Court) is directed to re-
examine the case in view of law laid down by the Hon'ble Apex Court in
Jamboo Bhandari's case (supra) and Muskan Enterprises's case (supra) and
after granting an opportunity to the petitioner to make submissions regarding
the exceptional circumstances, decide afresh whether it is an appropriate
case that warrants waiver of the requirement of deposit of 20% of the
compensation awarded by learned trial Court.
The directions given in the order dated 06.09.2023 (P-3) by
learned Appellate Court to the extent of depositing 20% of compensation, is
set aside and it is also clarified that the order of suspension of sentence
would not be disturbed in any manner and same would be subject to the
observations, which are yet to be made by the Appellate Court while dealing
with the provisions of Section 148 of the Act.
With the aforementioned observations, present petition stands
disposed of.
Let copy of this order be sent to the Lower court, for
information and necessary compliance.
(SANJAY VASHISTH)
JUDGE
March 24, 2025
J.Ram
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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