Order 5

Order Details: COPY OF ORDER
Pdf Text: CA No.38/2024
Multan Khan vs State & Anr.
02.07.2024
Present: Sh. Harkesh Nishad Raj, Ld. Counsel for appellant.
Appellant Multan Khan in person.
Sh. Sobit, Ld. Substitute. Addl. PP for State.
Sh. Sashi Kant, Ld. Counsel for respondent.
Heard. Perused.
Vide separate order dated 14.03.2024 of the Ld.
Predecessor Judge, the order on sentence passed against the
appellant/convict by Ld. MM, was suspended during pendency of
the trial subject to furnishing of Bank Draft in the sum of
Rs.4,50,000/- in the name of complainant on or before the next
date of hearing i.e. 07.05.2024. However, the appellant did not
comply with the condition of the said order and on 07.05.2024,
the appellant was again directed to comply with the order dated
14.03.2024 on or before 18.05.2024.
On 18.05.2024, appellant appeared along with Ld.
Counsel, however, condition of order dated 14.03.2024 was not
complied. Rather Ld. Counsel for appellant submitted that as per
mandate of section 148 of NI Act, 60 days time is provided to the
appellant to comply with said order and there is a provision of
further extension of time of 30 days and hence it was prayed that
the appellant may be granted further time of 30 days to comply
with the order dated 14.03.2024. Accordingly, on 18.05.2024, in
the interest of justice, appellant was granted further time till
05.06.2024 to comply with the order dated 14.03.2024.
-- 1 of 6 --
-2-
Even thereafter, appellant did not comply with the said
order and on 05.06.2024, the appellant/convict handed over a
post dated cheque of 15.06.2024 of Rs.4,50,000/- to the
respondent in compliance of order dated 14.03.2024 which was
handed over to the Complainant. However, it was made clear in
the said order that if the said cheque is bounced then the order
dated 14.03.2024 by which order on sentence was suspended,
shall automatically stand vacated and the appellant has to
surrender before Ld. Trial Court.
Today, Ld. Counsel for respondent submits that the
cheque dated 15.06.2024 given by the appellant/convict has
bounced and hence, order dated 14.03.204 has not been complied
with. In addition, the time of 60 days which was further extended
for a period of 30 days as per the provision of Section 148 of NI
Act provided to the appellant/convict, has also lapsed.
It was made clear in the order dated 05.06.2024 that in
case, the cheque dated 15.06.2024 which was given by the
appellant to the respondent in compliance of order date
14.03.2024, is dishonored then he will immediately surrender
before the Ld. Trial Court. The appellant has not preferred any
legal recourse of the said order nor he has surrendered before the
Ld. Trial Court. Section 148 of NI Act holds as under:-
[148. Power of Appellate Court to order payment
pending appeal against conviction
(1) Notwithstanding anything contained in the Code
of Criminal Procedure Code, 1973 (2 of 1974), in an
appeal by the drawer against convict under section
138, the Appellate Court may order the appellant to
deposit such sum which shall be a minimum of
twenty percent of the fine or compensation awarded
by the Trial Court:
PROVIDED that the amount payable under
-- 2 of 6 --
-3-
this sub-section shall be in addition to any interim
compensation paid by the appellant U/s 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 rage 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 complain.]
It is clear that under Section 148 NI Act, the time limit
to deposit the amount as directed by the Court pending appeal, is
60 days which is extendable to a further period of 30 days upon
sufficient cause being shown. In the instant matter, it is a matter
of record that the appellant, despite the clear orders of the Court,
did not furnish the Bank Draft as directed. He hasn’t even
complied with the order in the extended period of 30 days which
has already expired. Therefore, the appellant has not complied
with the mandate of Section 148 NI Act in the stipulated time
limit of 90 days and hence this Court has no discretion to extend
the time limit to deposit the amount as directed vide order dated
14.03.2024. In addition, any direction to that effect shall amount
to the Court reviewing its own order and it is trite law that this
Court does not possess this power. This Court keeping into
account the purpose of NI Act and the mandate of Section 148 NI
Act ordered the appellant/convict to deposit 20% of the
-- 3 of 6 --
-4-
fine/compensation amount pending the period of appeal. The
appellant did not challenge the said order dated 14.03.2024 for
waiver of the said amount nor did he challenge the order dated
05.06.2024. The Hon’ble Supreme Court in
Jamboo Bhandari v.
Madhya Pradesh State Industrial Development Corporation Ltd.;
(2023) 10 SCC 446 has clearly held:
“5. Para 8 of the decision of this Court in
Surinder Singh
Deswal [
Surinder Singh Deswal v.
Virender Gandhi,
(2019) 11 SCC 341 : (2019) 3 SCC (Cri) 461 : (2019) 3
SCC (Civ) 765] reads thus : (SCC p. 350)
“
8. Now so far as the submission on behalf of the
appellants that even considering the language used
in Section 148 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 NI Act as amended is concerned,
considering the amended Section 148 NI Act as a
whole to be read with the Statement of Objects and
Reasons of the amending Section 148 NI Act,
though it is true that in the amended Section 148 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 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 NI Act, a minimum of
20% of the fine or compensation awarded by the
trial court is directed to be deposited and that such
-- 4 of 6 --
-5-
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 NI Act is purposively interpreted in
such a manner it would serve the Objects and
Reasons of not only amendment in Section 148 NI
Act, but also Section 138 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 NI Act. Therefore, such a purposive
interpretation would be in furtherance of the
Objects and Reasons of the amendment in Section
148 NI Act and also Section 138 NI Act.”(emphasis
supplied)
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.”
At this stage, Sh. Salim Malik, Ld. Advocate appeared
on behalf of the appellant and submitted that applicant/convict is
the only earning member of his family and has small daughter
who is not keeping well. Thus, it is prayed that lenient view may
kindly be taken.
-- 5 of 6 --
-6-
Heard. Considered.
In this matter, despite clear direction, appellant has not
complied with the order dated 14.03.2024 by which order on
sentence was suspended. Furthermore, on 18.05.2024,
applicant/convict was also granted further time of 30 days to
comply with the order dated 14.03.2024 despite that he did not
comply with said order. The order dated 14.03.2024 vide which
the sentence of the appellant was suspended already stood
vacated by order dated 05.06.2024 when the appellant/convict
did not comply with the directions of this Court in terms of order
dated 14.03.2024. Hence, the appellant is taken into custody and
sent to JC.
Put up on 20.07.2024 for filing arguments/filing of
reply, if any. Last and final opportunity is granted to the Ld.
Counsel for appellant to advance arguments failing which present
appeal will be decided on the basis of material available on
record.
(Ashish Rastogi)
Addl. Sessions Judge -05
KKD/East/02.07.2024
-- 6 of 6 --