Uttarakhand High Court
C482/288/2024 on 22 February, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
C 482 No. 288 of 2024
Hon'ble Rakesh Thapliyal, J.
1. Mr. Pawan Mishra, learned counsel for the
applicant.
2. Mr. Saurabh Pandey, learned Brief Holders for
the State.
3. By the instant application preferred under
Section 482 Cr.P.C., applicant is challenging the order
dated 19.01.2024 passed by 1st Addl. Sessions Judge,
Dehradun in Criminal Appeal No. 185 of 2023 whereby
stay granted on the condition of pre-deposit of 20%
under Section 148 of the Negotiable Instruments Act,
was vacated.
4. It is submitted by the learned counsel for the
applicant that in a Criminal Case No. 4548 of 2018
preferred by the respondent no. 2 under Section 138 of
the Negotiable Instruments Act, present applicant has
been convicted by judgment dated 26.06.2023. Against
the judgment dated 26.06.2023, he preferred an appeal,
being Criminal Appeal No. 185 of 2023 before the
Sessions Judge, Dehradun. On 25.07.2023, 1st
Additional Session Judge, Dehradun, admitted the
appeal and enlarged the applicant on bail and directed
him to deposit, 20% of the compensation, as per Section
148 of the Negotiable Instruments Act. Applicant failed
to comply with the order, therefore, the 1st Addl.
Sessions Judge, vacated the interim order dated
25.07.2023, by order dated 19.01.2024. Feeling
aggrieved, the applicant has approached this Court.
5. Learned counsel for the applicant submits that
appellate court vide order dated 25.07.2023 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. 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."
6. 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.
7. Learned counsel for the applicant submits that in
the similar facts and circumstances, the Hon'ble
Supreme Court in SLP (CRL.) No.11906 of 2022 by
order dated 24.11.2023 has observed as 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."
8. Learned counsel for the applicant submits that
the issue, as raised in the C482 application, is 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.
9. After taking into consideration, the observations,
as recorded by the Hon'ble Supreme Court in the
judgment rendered on 24.11.2023, the impugned order
is set-aside and the appellate court is directed to re-
consider the application filed by applicant 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 observations of the Hon'ble Supreme Court
as recorded in the judgment dated 24.11.2023, passed in
SLP (CRL.) No.11906 of 2022.
10. In view of this, the present C482 application
stands disposed of.
(Rakesh Thapliyal, J.)
22.02.2024
SKS
