Sri Subrata Bikash Datta vs Sri Jiban Kumar Rakshit
2021 Latest Caselaw 828 Tri

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                      HIGH COURT OF TRIPURA
                            AGARTALA

                            Crl.Petn. No.19/2021
Sri Subrata Bikash Datta, S/O. Sri Sudhangshu Bikash Datta, Resident of
Kalibari Road, Dharmanagar, P.S.-Dharmanagar, District-North Tripura.
                                                         ----Petitioner(s)
                                    Versus
1. Sri Jiban Kumar Rakshit, S/O. Late Sudhir Ranjan Rakshit, Resident of
Nayanpara (Kalibari Road), P.O. & P.S.-Dharmanagar, District-North
Tripura.
2. The State of Tripura.
                                                            -----Respondent(s)

For Petitioner(s)                 : Mr. Rajib Saha, Advocate,
                                    Ms. Rajashree Purkayastha, Advocate.
For Respondent(s)                 : Mr. S. Debnath, Addl. P.P.

       HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

      Date of hearing and judgment : 2nd September, 2021.
      Whether fit for reporting          : YES.

                    JUDGMENT & ORDER (ORAL)

Petitioner original complainant of a cheque bouncing case has

challenged an order dated 23.02.2021 passed by the learned Sessions Judge,

North Tripura, Dharmanagar on an application filed by the petitioner in an

appeal filed by the respondent No.1 the original accused.

2. Brief facts are as under:

The case of the petitioner is that the respondent No.1 had

borrowed certain sums of money from the petitioner from time to time and

in discharge of the debt, the respondent No.1 had issued a cheque dated

30.07.2015 for a sum of Rs.7,57,640/-. This cheque being presented for

realization was returned on the ground that the balance in the account was

insufficient. The petitioner thereupon filed a complaint against the

respondent No.1 under Section 138 of the Negotiable Instruments Act. The

concerned Magistrate conducted a trial during which the respondent No.1

disputed his guilt, however, did not dispute his signature on the cheque. The

learned Magistrate decided the criminal case by a judgment dated

12.02.2020 by which the respondent No.1 original accused was convicted

for offence punishable under Section 138 of the Negotiable Instruments Act.

He imposed a sentence of simple imprisonment of one year and ordered the

accused to pay fine of Rs.10,00,000/- out of which Rs.8,00,000/- would be

paid to the complainant towards the cheque amount with interest.

3. The accused challenged the said judgment of the Magistrate

before the Sessions Court. This appeal was admitted on 27.02.2020. On the

same date the Sessions Court also passed an order suspending the sentence

without imposing any condition on the accused. Significantly, this order was

passed without any notice to the complainant. The complainant received the

notice of admission of appeal on 08.03.2020. According to him, however,

soon thereafter there was a nationwide lockdown and on account of which

he could put up his appearance before the Sessions Court only on

20.08.2020 once the situation became semi normal. On 17.11.2020 the

petitioner moved an application before the Sessions Court in the said

pending appeal and requested that the appellant be directed to deposit 20%

of the fine amount in terms of Section 148 of the Negotiable Instruments

Act. This application was dismissed by the appellate Court by impugned

order dated 23.02.2021 on following grounds:

(i) That the appeal is already admitted for hearing and part

hearing has already taken place and thus the appeal would be decided

shortly;

(ii) The Court cannot review its own order regarding

admission of the appeal; and

(iii) The Court has also passed an order suspending the

sentence and any such direction for depositing 20% of the fine amount

would amount to review of such order passed in Criminal Misc. Application

No.05 of 2020.

4. Learned counsel for the petitioner Mr. Rajib Saha submitted

that there was no delay on part of the petitioner in moving the application for

depositing the amount. The learned Judge committed a serious error in

rejecting such application on this ground. He further submitted that merely

because the appeal was ripe for hearing, would not be a ground for refusing

to exercise power under Section 148 of the Act. He lastly pointed out that

the order for suspension of sentence was passed without a notice to the

petitioner. He drew my attention to a judgment of the Supreme Court in case

of Surinder Singh Deswal @ Col. S.S. Deswal & others vrs. Virender

Gandhi & another dated 08-01-2020 in which in context of Section 148 of

the Negotiable Instruments Act it was observed that the said provision

should receive purposive interpretation.

5. I have heard learned Additional Public Prosecutor Mr. S.

Debnath who has drawn my attention to the relevant statutory provisions.

Learned advocate Mr. K.K. Roy who has entered appearance on behalf of

respondent No.1 has remained consistently absent on several occasions in

the past and also today. I, therefore, did not have the benefit of his

arguments.

6. In my view, the learned Sessions Judge committed a serious

error in rejecting the application of the petitioner by the impugned order.

Firstly, there was no delay on part of the petitioner in moving such an

application. As noted, service of admission of the appeal was made on the

petitioner on 08.03.2020. One can take judicial notice of the fact that within

a short period thereafter on or around 23.03.2020, to avoid spread of

coronavirus there was a nationwide lockdown making movement of persons

extremely difficult. The situation continued for a long time till around in the

month of August and September, 2020 partial normalcy returned. If,

therefore, the petitioner could enter his appearance in the appellate Court on

20.08.2020 and thereafter moved an application for depositing the amount in

terms of Section 148 of the Negotiable Instruments Act on 17.11.2020, his

approach cannot be stated to be lethargic.

7. The appeal was admitted ex parte so was the request for

suspension of sentence granted, both on the same day. Surely the petitioner

the complainant of a cheque bouncing, cannot be deprived of the benefit of a

statutory provision on account of admission of the appeal and suspension of

the sentence without hearing the complainant.

8. Section 148 of the Negotiable Instruments Act was inserted

w.e.f. 01.09.2018 and reads as under:

"148. Power of Appellate Court to order payment pending appeal against conviction.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the

appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court:

Provided that the amount payable under this sub- section shall be in addition to any interim compensation paid by the appellant under section 143-A.

(2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant.

(3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:

Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant."

9. In terms of sub-section (1) of Section 148 thus in an appeal by

the drawer against the conviction under Section 138, the Appellate Court

may order the appellant to deposit such sum which shall be a minimum of

twenty per cent of the fine or compensation awarded by the trial Court

which shall be in addition to any interim compensation which may have

been paid under Section 143-A which is the power of the trial Court. As per

sub-section (2) of Section 148 the amount would be deposited within sixty

days from the date of the order unless extended by the Court up to a

maximum of thirty days. The appellate Court may also release the amount in

favour of the drawee of the cheque pending the appeal.

10. As pointed out by the counsel for the petitioner this provision

came up for consideration before Supreme Court in case of Surinder Singh

Deswal (supra). In the context of the use of the word "may" in sub-section

(1), the Supreme Court had made following observations:

"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 is vested with the 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 by 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 amend 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."

11. The provisions of Section 148 of the Negotiable Instruments

Act, therefore, had to be activated as desired by the legislature. The

appellate Court on its own could have issued such a direction without the

petitioner having moved an application for such purpose. Even if the

appellate Court omitted to do so and admitted the appeal which in the

present case happened without notice to the petitioner, that cannot be the

ground for refusing the application of the petitioner for such purpose. Sub-

section (1) of Section 148 does not provide that the order for depositing the

amount can be made only at the time or before admission of the appeal. In

other words, depositing the amount is not a precondition for admission of

the appeal. Admission of appeal would depend on the appellant making out

a prima facie case. The direction for depositing the amount in terms of sub-

section (1) of Section 148 would depend on the facts and circumstances of

the case. The Supreme Court in case of Surinder Singh Deswal (supra) has

stressed upon the requirement of giving purposive interpretation to the said

provision utilizing the powers to ensure that there is no dilatory tactic

employed by the drawer of the cheque. Even if the Supreme Court has not

gone to the extent of holding that the word "may" used in sub-section (1) of

Section 148 would be read as "shall", nevertheless there is a clear intention

discernible in the judgment of the Supreme Court that such provision should

be utilized in appropriate cases.

12. Merely because the Court had passed the orders suspending the

sentence on a petition filed by the accused, that too without hearing the

complainant, again would not be a ground to frustrate the petition of the

drawee of the cheque for giving directions in terms of sub-section (1) of

Section 148 of the Negotiable Instruments Act. On all counts thus the

District Court committed an error in dismissing the request of the petitioner

without examining it on merits.

13. I have perused the judgment rendered by the learned

Magistrate. As noted, the accused had not disputed his signature on the

cheque. His defence primarily was that the cheque was not issued for

discharge of a debt or a liability. If that was his defence, it was a duty of the

accused to rebut the presumption arising under the Negotiable Instruments

Act that such cheque was issued for discharge of a debt or liability. Prima

facie it appears that the accused had taken no steps to discharge his liability.

The appellate Court, therefore, ought to have insisted on the accused

depositing at least 20% of the amount of fine imposed by the Magistrate.

Under the circumstances, the respondent No.1 is directed to deposit a sum of

Rs.2,00,000/- before the Sessions Court within sixty days from today. Upon

such deposit the amount shall be released in favour of the appellant which

release shall be subject to the order that may be passed in terms of proviso to

sub-section (3) of Section 148 of the Negotiable Instruments Act if the

accused is acquitted by the Sessions Court.

14. Before closing, it is clarified that the observations made in this

order are only prima facie in nature and for the purpose of dealing with the

request of the petitioner for depositing the amount under Section 148 of the

Negotiable Instruments Act and the Sessions Court shall decide the appeal

of the accused unmindful of any of these observations. Such appeal shall be

taken up for hearing only after the amount is deposited by the accused as

provided in this order.

15. Petition disposed of accordingly.

Pending application(s), if any, also stands disposed of.

(AKIL KURESHI), CJ

Pulak