Uttarakhand High Court
Mohd. Anwaar vs State Of Uttarakhand And Another on 17 May, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 105 of 2024
Mohd. Anwaar ...Revisionist
Versus
State of Uttarakhand and Another ...Respondents
Present:-
Mr. P.C. Petshali, Advocate for the revisionist.
Mr. M.A. Khan, A.G.A. with Mr. Vipul Painuly, Brief
Holder for the State.
Mr. M.S. Bhandari, Advocate for the respondent no.2.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to the order
dated 06.01.2024, passed in Criminal Appeal No.01 of 2024,
Mohd. Anwaar Vs. State of Uttarakhand and Another, by the
court of Additional Sessions Judge, Kotdwar, District Pauri
Garhwal. By it, while admitting the revisionist to bail, he was
directed to deposit 20% of the amount of fine within 60 days
since then.
2. Heard learned counsel for the parties and perused
the record.
3. The revisionist was convicted under Section 138 of
the Negotiable Instruments Act, 1881 ("the Act") on
16.12.2023, in Criminal Case No.738 of 2015, Subhash
Chandra Kainthola Vs. Mohd. Anwaar, by the court of
Additional Chief Judicial Magistrate, Kotdwar, District Pauri
Garhwal. He was sentenced to 1 year imprisonment and a
fine of Rs. 18,40,000/-. The court has also directed for
compensation from the amount of fine.
4. The order dated 16.12.2023 was challenged by the
revisionist in appeal. He also moved an application for bail.
By the impugned order dated 06.01.2024, as stated, while
admitting the revisionist to bail, the court also directed him
to deposit 20% of the amount of fine within 60 days since
then.
5. Learned counsel for the revisionist would submit
that the deposition of 20% of fine is not mandatorily required
for admitting the revisionist, in such cases, to bail. He would
submit that it is directory. This aspect was not considered by
the court below, and, in fact, the respondent was not heard
on this aspect; the respondent no.2 did not file any
application for that purpose also.
6. Learned counsel for the respondent no.2 would
submit that it is mandatory under Section 148 of the Act for
the revisionist to deposit 20% of the amount of fine. He
would also submit that this is the third round of litigation.
Earlier, in a C482 petition, filed by the revisionist,
Rs.10,000/- cost was also imposed on him. He would refer
to the judgment and order dated 05.09.2022, passed by this
Court in Criminal Misc. Application No.496 of 2017, Mohd.
Anwar Vs. Subhash Chandra Kainthola,("the C482 petition")
by which the challenging to the summoning order was
declined and a cost of Rs. 10,000/- was imposed on the
revisionist. He would submit that this is delaying tactics
adopted by the revisionist now.
7. Section 148 of the Act reads as hereunder:-
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.
8. In the case of Surinder Singh Deswal Vs. Virender
Gandhi, (2019) 11 SCC 341, the Hon'ble Supreme Court
interpreted the word 'may', as used under Section 148 of the
Act, and in Para 8, observed as follows:-
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 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 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, though it is true that in the
amended 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
CrPC 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 shown by the
appellant. Therefore, if amended Section 148 of the NI Act is
purposively interpreted in such a manner it would serve the
Objects and Reasons of not only amendment 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.
9. Subsequent to it, in the case of Jamboo Bhandari
Vs. Madhya Pradesh State Industrial Development
Corporation Limited and Others, (2023) 10 SCC 446, the
Hon'ble Supreme Court interpreted this aspect further and
observed as follows:-
6. What is held by this Court is that a purposive
interpretation should be made of Section 148 NI Act. Hence,
normally, the 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 the appellate court considers the
prayer under Section 389CrPC of an accused who has been
convicted for offence under Section 138 NI 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.
10. In the impugned order, the court has taken notice
of the principles of law, as laid down in the case of Jamboo
Bhandari (supra). In a mechanical manner, the revisionist
was not directed to deposit 20% of the amount of fine within
60 days, since then. After hearing the parties and
considering the law on the subject, the impugned order has
been passed.
11. The question is as to whether the discretion that
is vested in the court under Section 148 of the Act has been
exercised judiciously or not? The Court wanted to know from
learned counsel for the revisionist as to why the revisionist
should not be directed to pay 20% of the amount of fine,
while admitting him to bail? He would submit that the
manner in which the order is passed reflects that the court
was adamant to direct the revisionist to deposit 20% of the
amount of fine.
12. This may, perhaps, not be true. The perusal of the
impugned order reveals that the court has quoted the
arguments that were made on behalf of the revisionist and
the principles of law, as laid down in the case of Amit Kumar
Vs. State of Haryana, in CRL No.20603 of 2022, decided by
the Hon'ble Punjab and Haryana High Court and the
principles of law, as laid down in the case of Jamboo
Bhandari (supra), and after considering, the court did not
find it a case fit in which sentence may be suspended
without pre deposit of the 20% amount of the fine. Nothing
has been shown as to why the amount should be reduced.
13. It is admitted that twice before, the revisionist had
approached this Court. First, when the summoning order
was challenged by him in the C482 petition, which was
rejected with the cost of Rs. 10,000/-, and, secondly, it is
stated by learned counsel for the respondent no.2, that the
revisionist had filed a Transfer Application No.10 of 2023,
which was subsequently withdrawn by him when the matter
was decided. This fact is not in dispute.
14. On facts, according to the complaint of the
respondent no.2, a deal of property was settled with the
revisionist by the respondent no.2 for Rs. 8,21,000/-, on
which Rs. 99,000/- damages were also added. Therefore, for
total Rs. 9,20,000/-, the revisionist had given a written text
also to the respondent no.2, and, subsequently, in discharge
of his liabilities for payment of Rs. 9,20,000/-, as per
complaint, the revisionist gave a cheque of that amount on
21.06.2015, which, when presented, was dishonoured. It is
not even stated before this Court that the revisionist is not in
a position to pay this amount. Nothing has been brought
even to the notice of this Court that the right to bail of the
revisionist may be defeated if the condition of deposition of
20% of the amount of fine remains unchanged. As stated, the
court below has considered the law, and, thereafter, declined
to reduce the amount of the pre-deposit.
15. Having considered, this Court does not find
any merit to make any interference in this revision.
Accordingly, the revision deserves to be dismissed.
16. The revision is dismissed.
(Ravindra Maithani, J.)
17.05.2024
Ravi Bisht
