Uttarakhand High Court
C482/229/2024 on 21 February, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
SL. Office Notes,
No. Date reports,
orders or COURT'S OR JUDGE'S ORDERS
proceedings
or directions
and
Registrar's
order with
Signatures
C482 No.229 of 2024
with
C482 No.230 of 2024
C482 No.235 of 2024
Hon'ble Rakesh Thapliyal, J.
1. Mr. Gaurav Singh, learned counsel for
the applicant.
2. Mr. Bhaskar Chand Joshi, learned
AGA along with Mr. Rakesh Joshi, learned
Brief Holder for the State.
3. In all these three C482 applications, a
common question of law is involved,
therefore with the consent of the parties,
the matter is being decided by a common
order.
4. Three proceedings have been initiated
against the applicant under Section 138 of
the Negotiable Instruments Act, 1881, in
which the applicant has been convicted and
the compensation has been inflicted upon
the present applicant.
5. Being aggrieved by the said order, the
applicant filed three appeals before the
Sessions Judge, Haridwar.
6. Learned counsel for the applicant
submits that appellate court vide order
dated 02.09.2022 directed the applicant to
deposit minimum 20% of the total amount
of compensation as per the mandate of
Section 148 of the Negotiable Instruments
Act,1881
7. Section 148 of the N.I. Act is being
extracted herein-below:-
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 143A.
(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."
Sub-Clause 1 of Section 148 stipulates
that in an appeal filed by the drawer against
conviction under Section 138, of the N.I.
Act, 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.
8. It is submitted by learned counsel for
the applicant that apart from the aforesaid
three proceedings, in respect of 138 N.I. Act,
one more proceeding was also initiated
against the present applicant in respect of
the same transaction, in which the appeal
was filed, but the Appellate Court has
directed to deposit 20% of the amount of
compensation, against which a C482
application, bearing C482 No.1812 of 2022,
was preferred by the present applicant, but
the same was dismissed by this Court on
17.10.2022.
9. Being aggrieved by the said judgment,
the applicant filed an appeal before the
Hon'ble Supreme Court, by way of SLP
(CRL.) No.11906 of 2022 and the same was
disposed of by the Hon'ble Supreme Court
on 24.11.2023. The order passed by the
Hon'ble Supreme Court is being reproduced
herein-under:-
"Leave granted.
We have heard learned counsel for the
respective parties.
During the course of submissions,
learned counsel for the appellant drew our
attention to a recent judgment of this Court
in the case of Jamboo Bhandari vs. M.P.
State Industrial Development Corporation
Ltd. and ors. reported in (2023) SCC Online
SC 1144 dated 04.09.2023 and particularly
to paragraph "6" of the said judgment, which
reads as under:
"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."
In the circumstances, we find that
justice would be subserved by permitting the
appellant to advance his arguments on the
application seeking waiver of pre-deposit
which was dismissed by the Appellate Court
and sustained by the High Court in Light of
the aforesaid judgment.
Consequently, the impugned order
passed by the High Court sustaining the
order of the Sessions Court is/are set aside.
The Sessions Court to re-consider the
application filed by appellant herein seeking
waiver of the pre-deposit.
It is needless to observe that the
Sessions Court shall consider the said
application in accordance with the
observations of this Court in the aforesaid
judgment and in accordance with law.
The appeal is allowed and disposed of
in the aforesaid terms.
Pending application(s), if any, shall
stand disposed of."
10. On perusal of the order passed by the
Hon'ble Supreme Court, the order of the
High Court was set aside and the Session
Court was directed to re-consider the
application filed by appellant herein seeking
waiver of the pre-deposit.
11. Learned counsel for the applicant
submits that the issues, as raised in all
these C482 applications, are squarely
covered by the order of the Hon'ble Supreme
Court. He further submits that Section 148
of the N.I. Act stipulates the word "may",
but that aspect has not been looked into by
the order impugned by the Appellate Court.
12. After taking into consideration, the
observation, as recorded by the Hon'ble
Supreme Court in the judgment rendered
on 24.11.2023, the impugned orders are
set-aside and the appellate court is directed
to re-consider the application filed by
appellant herein seeking waiver of the pre-
deposit in view of Section 148 of the
Negotiable Instruments Act,1881, as well as
in view of the observation of the Hon'ble
Supreme Court as recorded in the judgment
dated 24.11.2023, passed in SLP (CRL.)
No.11906 of 2022.
13. In view of this, the present C482
application stands disposed of.
(Rakesh Thapliyal, J.)
21.02.2024
R.Bisht
