Judgment Analysis COL. S.S. DESWAL & ORS vs Virender Gandhi & ANR

IN THE MATTER OF:

@ COL. S.S. DESWAL & ORS. … APPELLANTS

VERSUS

VIRENDER GANDHI & ANR. … RESPONDENTS

FACTS:

That the Respondent herein were filed criminal complaints under section 138 N.I. Act against the appellants i.e. (accused in the original complaint). The complaints were decided by Judicial Magistrate vide his judgment dated 30.10.2018 holding the appellant Nos.1 and 2 guilty for the offence punishable under  Section 138 of the NI Act, who were accordingly convicted. By order dated 13.11.2018 the appellants were sentenced to undergo imprisonment for a period of two years and to pay jointly and severally an amount equal to the amount involved in the present case i.e. cheque amount plus 1% of this amount as interest as well as litigation expenses.

The appellants (Aggrieved) were very disappointed by the order that was passed by the trial court, the appellants preferred Criminal Appeals before Learned Additional Sessions Judge, Panchkula against the judgment dated 30.10.2018 and sentence dated 30.11.2018 . In the appeal the appellants had filed an application under Section 389 of Cr.P.C. for suspension of sentence. The learned trial court has suspended the sentence of the appellants by order dated 13.11.2018 for 30 days. The Appellate Court vide order dated 01.12.2018 entertained the appeal and suspended the sentence during the pendency of the appeal, subject to furnishing of bail bond and surety bond in the sum of Rs.50,000/- with one surety in the like amount and also subject to deposit of 25% of the amount of compensation awarded by the learned trial court in favour of the complainant. The appellants were directed to deposit the amount within four weeks by way of demand draft in the name of the Court.

The appellants approached Hon’ble High Court of Punjab and Haryana invoking revisional jurisdiction against the order directing 25% of the compensation/fine to be deposited contending that the amendment shall not be applicable on the complaints initiated prior to the amendment. However, Hon’ble High Court while rejecting the contention dismissed the revision petition and confirmed the orders passed by first appellate court.

 APPELLANT MEANWHILE APPROACHED APEX COURT

HELD:-

THAT THE AMENDED Section 148 of the 12 N.I. Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the N.I. Act, but also Section 138 of the N.I. Act. 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 dishonoured 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, the Parliament has thought it fit to amend Section 148 of the N.I. Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the N.I. Act and also Section 138 of the N.I. Act.”

FINAL:- APPEAL STANDS DISMISSED.

observe

That vide its Judgment dated 08/01/2020, the Bench of Hon;ble Supreme Court of India has emphasis that Section 148 of the N.I. Act as amended, shall be applicable in respect of the appeals against the order of conviction and sentence for the offence Under Section 138 of the N.I. Act, even in a case where the criminal complaints for the offence Under Section 138 of the N.I. Act were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018. and further pronounced that non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated.

EXPLAINATION OF ONE CONFUSING WORD BY SUPREME COURT U/s 148 OF N.I ACT

it is true that in amended Section148 of the N.I. 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 N.I. Act confers power upon the Appellate Court to pass an order in pending appeal to direct the Appellant-Accused to deposit the sum which shall not be less than 20% of the fine or compensation

In view of this judgement the Hon’ble Court upheld the power of trial court .

And saves the power of trial courts If conditions not fulfilled :-

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.

Conclusion

In view of the aforesaid exhibition

The Hon’ble Supreme Court while deciding the appeal has crystal highlighted the reasons for amendment of section 148 of the NI Act , 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, Such delay tactics defeated the purpose of the NI Act and compromised the sanctity of the cheque transactions and hence the amendment in section 148 was brought in by the Parliament. Therefore, considering the Statement of Objects and Reasons of the amendment in section 148, more over the apex Court has completely clarified that the section 148 of NI act shall be applicable in respect of the appeals against the order of conviction under section 138 of the NI Act, even in a case where the criminal complaints about the offence under section 138 were filed prior to the NI Amendment Act came into force and clarified the confusion over enforceability of the new provisions. 

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