M.Jeyaraman v. N.Ganesan

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 23.04.2024

CORAM

THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN Crl.R.C(MD)Nos.356, 329, 331, 335, Crl.R.C(MD) No.356 of 2024 M.Jeyaraman ... Revision Petitioner/Petitioner Vs.

N.Ganesan ... Respondent/Respondent PRAYER: Criminal Revision Petition has been filed under Section 397 r/w 401 of Cr.P.C., to call for the records and set aside the order passed in Cr.M.P.No.681 of 2024 in C.A.No.40 of 2024, dated 03.02.2024 on the file of the learned Principal District and Sessions Judge, Madurai, that the petitioner is to deposit 20% of the compensation amount before the learned Judicial Magistrate No.II, FTC at Magistrate Level, Madurai, within a month. For Petitioner : Mr.Balarathiran Kumar.T (In all cases) For Respondent : Mr.M.Jegadeesh Pandian (In all cases) 1/16

C O M M O N O R D E R These Criminal Revisions have been filed challenging the order passed by the learned Principal District and Sessions Judge, Madurai, by imposing the condition upon the petitioners to deposit 20% of the compensation amount awarded by the learned Judicial Magistrate No.II, FTC at Magistrate Level, Madurai.

2. The respondent has filed several complaints as against the petitioners before the learned Judicial Magistrate No.II, FTC at Magistrate Level, Madurai, due to dishonour of cheques issued by the petitioners in S.T.C.Nos.363, 625, 631, 677, 678 , 679, 693 and 694 of 2022. By the judgment, dated 18.01.2024, the learned trial Judge, after conducting full fledged trial, has convicted the petitioners and sentenced them to undergo one year Rigorous Imprisonment and to pay the respective cheque amounts as compensation within a period of two months from the date of judgment, in default to undergo six months Simple Imprisonment. Challenging the same, the petitioners have filed these appeals. Pending appeals, they have filed the 2/16

petitions to suspend the sentence imposed upon them, in which, the learned appellate Judge has passed an order imposing condition to deposit 20% of the compensation amount within a month. Challenging the same, the present revisions have been filed.

3. The learned counsel for the petitioners would submit that as per the judgment of Hon'ble Supreme Court reported in 2023 Live Law (SC) 776 imposing the condition under Section 148A of Negotiable Instrument act is not in accordance with law. Hence, he seeks for setting aside the condition imposed by the learned Principal District and Sessions Judge, Madurai, vide orders, dated 03.02.2024.

4. Per contra, learned counsel for the respondent/complainant submitted that these revisions have been filed to prolong the non-payment. Further, the Hon'ble Supreme Court also stated that the Court below has jurisdiction to look into facts and circumstances of each cases and to impose the conditions. Hence, there is no need to interfere in the order passed by the first appellate Court. 3/16

5. This Court has considered the rival submissions made by both sides and also perused the records and impugned orders.

6. Before going into the merits of the case, this Court extract 148 of the Negotiable Insturment Act as follows:

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 subsection 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, 4/16

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.

7. The above amendment was brought to redress the grievance of the public including the trading community relating to the pendency of the dishonour of cheques and the same is as follows: 6.2. While considering the aforesaid issue/question, the Statement of Objects and Reasons of the amendment in Section 148 of the NI Act, as amended by way of 5/16

Amendment Act 20 of 2018 and Section 148 of the NI Act as amended, are required to be referred to and considered, which read as under:

"The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realise the value of the cheque. Such delays compromise the sanctity of cheque transactions.

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2. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy.

8. The Hon'ble Supreme Court in the case of urinder Singh Deswal v. Virender Gandhi, reported in 2019 11 SCC 341 has applied purposive interpretation to the word "may" and also the non obstinate clause, namely, "notwithstanding anything containing the Code of Criminal Procedure" and has held 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 7/16

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.

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.

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. The same was also reiterated by the Hon'ble Supreme Court in the case of Surinder Singh Deswal Alias Colonel S.S.Deswal and others Vs.Virender Gandhi and another reported in 2020 (2) SCC 514 and further held that in the event of the non compliance of the condition it has adverse effect on the continuation of the suspension of sentence.

19. The High Court is right in its opinion that Question 2 as framed in Vivek Sahni 10/16

case [Vivek Sahni v. Kotak Mahindra Bank Ltd., CRM-M No. 29187 of 2019 (O&M), order dated 18-7-2019 (P&H)] was not correctly considered. When suspension of sentence by the trial court is granted on a condition, noncompliance of the condition has adverse effect on the continuance of suspension of sentence. The Court which has suspended the sentence on a condition, after noticing non-compliance of the condition can very well hold that the suspension of sentence stands vacated due to non-compliance. The order of the Additional Sessions Judge declaring that due to noncompliance of condition of deposit of 25% of the amount of compensation, suspension of sentence stands vacated is well within the jurisdiction of the Sessions Court and no error has been committed by the Additional Sessions Judge in passing the order dated 20-7-2019.

20. It is for the appellate court who has granted suspension of sentence to take call on non-compliance and take appropriate decision. What order is to be passed by the appellate court in such circumstances is for the appellate 11/16

court to consider and decide. However, noncompliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated.

10. The Hon'ble Supreme Court in the subsequent decision reported in 2023 LIVE LAW SC 776 has directed the Courts to consider the facts of each case before imposing 20% deposit. The relevant paragraphs are as follows:

6.What is held by this Court is that a purposive interpretation should be made of Section 148 of the Negotiable Instruments 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.

7.Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C., of an accused who has been convicted for 12/16

offence under Section 138 of the N.I 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 revisions for coming to the said conclusion must be recorded.

11. From the consideration of the above law laid down by the Hon'ble Supreme Court and the object behind the incorporation of Section 148 of the Negotiable Instruments Act, the contention of the petitioner that the Court below erred in imposing the condition to deposit 20% of the cheque amount cannot be accepted. But, the percentage of the amount, which has to be deposited could be assessed on the facts and circumstances of each case. In this case, it is the specific case of the petitioner/accused that he has paid substantial payments and the same was admitted by the respondent in his cross examination. Therefore, this Court considering the said submission, is inclined to reduce the condition imposed by the learned appellate Judge, vide orders, dated 03.02.2024, from 20% of compensation 13/16

amount to 10% of compensation amount.

12. Accordingly, this Criminal Revision Cases are disposed of with the following conditions:

(i) The petitioner is directed to deposit 10% of the compensation amount in all cases on or before 26.07.2024, failing which, the original order passed by the learned Appellate Judge shall be restored and consequently, the learned trial Judge can secure the petitioner as per the judgment in S.T.C.Nos. 363, 625, 631, 677, 678 , 679, 393 and 694 of 2022, by the learned Judicial Magistrate No.II, FTC at Magistrate Level, Madurai, to undergo the sentence of imprisonment imposed therein.

(ii) The learned Appellate Judge is directed to re-deposit the amount, which are to be deposited by the petitioners, in the interest bearing account.

(iii) The Appellate Judge is further directed to dispose the main appeals within a period of two months thereafter from 26.07.2024. 23.04.2024 NCC : Yes/No Index : Yes/No 14/16

Internet: Yes/No Indu To 1.The Principal District and Sessions Court, Madurai.

2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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K.K.RAMAKRISHNAN, J.

Indu Crl.R.C(MD) No.356, 329, 331, 335, 23.04.2024 16/16