Disposed

Tirumala Naga Venkata Satyanarayana v. State of Andhra Pradesh

Andhra Pradesh HC3 Sept 2024CRLP/6085/2024

Case brief

AI extract

What is this about?

The High Court, exercising its power under Section 482 Cr.P.C., set aside an appellate order imposing a 20% deposit condition under Section 148 NI Act. The court held that since the Appellate Court did not record exceptional reasons for waiving the deposit, the matter is restored for fresh consideration with sentence suspended.

What did the court decide?

The impugned order setting conditions is set aside and restored to the Appellate Court for fresh consideration.

Tirumala Naga Venkata Satyanarayana Vs State of… — Cheque Dishonour | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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»Arr“rMkir—vvcui'jLoumt , THE FOURTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HON’BLE SRI JUSTICE B V L N CHAKRAVARThI^,

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CRIMINAL PETITION NO: 6085 OF 2024

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Between:

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Tirumala Naga Venkata Satyanarayana, S/o. Nageswara Rao, Male, Aged 40 years, Coconut Business, R/o. D.No. 4-1, Maddipati vari Street, Teeparru Village, Peravali Mandal, West Godavari Dsitrict.

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...PETITIONER/APPELLANT/ACCUSED

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State of Andhra Pradesh, Rep by its Public Prosecutor, High Court of Andhra Pradesh, Amaravati.

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...RESPONDENT

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Gadiraju Satish, S/o. Krishna, Male, Aged 32 years, R/o. Karatuvari Street, Teeparru Village, Peravali Mandal, West Godavari District.

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...RESPONDENT/COMPLAINANT

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Petition under Section 528 of BNSS under Section 482 of Cr.P.C. praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the condition imposed by the Appellate Court i.e., the court of IV Additional Sessions Judge, West Godavari at Tanuku i.e., payment of 20% of compensation amount vide its order Dt;27.03.2024 in Crl.M.P.No.195 of 2024 in Criminal Appeal No.51 of 2024.

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I.A. NO: 1 OF 2024

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay the condition imposed by the Appellate Court i.e., the court of IV Additional Sessions Judge, West

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Godavari at Tanuku i.e , payment of 20% of compensation amount vide its order Dt;27.03.2024 in t I . I M.P.Nc.195 u''"'2024 in Crirninai Appeal No.61 of 2024.

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri Mallavelli Naga Sai Lalith Kumar, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent No.1 and None Appeared for the Respondent No.2.

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The Court made the following ORDER:

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APHC010378322024 IN THE HIGH COURT OF ANDHRA lU PRADESH AT AMARAVATI

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V-.-i [3368] re (Special Original Jurisdiction)

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(Special Original Jurisdiction)

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WEDNESDAY, THE FOURTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

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CRIMINAL PETITION NO; 6085/2024

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Between:

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Tirumala Naga Venkata Satyanarayana

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...PETITIONER/ACCUSED

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AND

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State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT(S) and Others

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Counsel for the Petitioner/accused:

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1.MALLAVELLI NAGA SAI LALITH KUMAR

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Counsel for the Respondent/complainant(S):

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PUBLIC PROSECUTOR

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The Court made the following:

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THE HON’BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

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CRIMINAL PETITION No.6085 OF 2024

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ORDER:

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This Criminal Petition IS filed by the Petitioner/Appellant/Accused, under Section 482 of Code of Criminal Procedure, 1973, for quash of the order dated 27.03.2024 in Crl.M.P.No.195 of 2024 in Crl.A.No.51 of 2024 passed by the learned IV Additional District and Sessions Judge, West Godavari, Tanuku.

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Heard learned counsel for the petitioner and learned Assistant Public Prosecutor representing the State.

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Learned counsel for the petitioner would submit that learned Sessions Judge in the appeal against the conviction^for the offence punishable under Section 138 of Negotiable Instruments Act passed the impugned order dated 27.03.2024 in Crl.M.P.No.195 of 2024 in CRLA No.321 of 2021 under Section 389(1) Cr.P.C., directed the petitioner to deposit^20% of the compensation amount ordered by the learned Trial Judge^withina period of sixty (60) days from the date of the order, while suspending the sentence of imprisonment awarded by the learned Magistrate. He would submit that the order^ofthelearned

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Sessions Judge is not in accnrH=.nr^o WVlill Jamboo Bhandari v. MP State Industrial Development Corporation Ltd 's case.

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The learned Assistant Public Prosecutor takes notice for the State and would submit that the Appellate Court has power to order the appellant to deposit such sum, which shall be a minimum of 20% of the fine or compensation amount awarded by the trial Court i in an appeal against the conviction U/s.138 of Negotiable Instruments Act.

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Section 148 of Negotiable Instruments Act is as under; S. 148 Power of Appellate Cn.irt against convicfinn to order payment oenriinr,

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Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 percent of the fine or compensation awarded by the trial Court:

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Provided that the amount payable under this sub-section shall be in addition to any Interim compensation paid by the appellant under section 143A.

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The amount referred to i 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.

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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;

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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.

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The Hon ble Supreme Court in the case of Surinder Singh Deswal @ Colonel S.S.Deswal and others^ on section 148 of Negotiable Instruments Act held as under;

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Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the Nl 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 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 Nl Act as amended is concerned, considering the amended Section 148 of the Nl Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the Nl Act, the word used is “may”, it

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2019 (11) see 341

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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.

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Therefore amended Section 148 of the Nl 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 file 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 Nl 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.

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Therefore, if amended Section 148 of the Nl Act is purposively interpreted in Section 148 of the Nl Act, but also Section 138 of the Nl 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^drawersof the dishonoured cheques due to easy filing of the appeals^and obtaining stay in the proceedings, an injustice was^causedtothe payee of a dishonoured cheque, who has to spend considerable time and resources in the court proceedings to realise^thevalue

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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 Nl Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the Nl Act and also Section 138 of the Nl Act.”

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The Hon’ble Supreme Court in Jamboo Bhandarl Vs. M.P.State Industrial Development Corporation Limited and Others^, referring above para in the case of Surinder Singh Deswal @ Colonel S.S.Deswal and others, held in paras 6^to 9

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as under;

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What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.l. 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.

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Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.l. Act, it is always open for the Appellate Court to consider whether it is an exceptional case

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^ 2023 LiveLaw (SC) 776

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which warrants grant of suspension of sentence 'A/ithout 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.

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The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea.

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We disagree with the above submission. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not.”

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Therefore, in the light of above judgments of the Hon’ble Supreme Court, normally, the Appellate Court will be justified in imposing condition of deposit as provided in section 148 of

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N.I.A.ct. However, in a case, whether the Appellate Court is satisfied with the condition of deposit of 20% will be unjust.

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exception can be made for the reason specifically recorded. .Hence, when the Appellate Court considers an application filed U/s.389(1) Cr.P.C. corresponding to Section 430 of^BNSSbythe drawer of the cheque (accused), who was convicted for the offence U/s.138 of Negotiable Instruments Act, the^Appellant Court has to consider whether it is exceptional case which warrants grant of suspension of sentence without imposing condition of deposit of 20% of fine/compensation amount. If the Appellate Court comes to said conclusion that it is^{anexceptional} case, reasons for coming to such conclusion must be^recorded. .9. In the case on hand, the impugned order of the learned Appellate Court does not disclose anything that the learned Appellate Court considered whether the cases in the^exceptionor not? i.e., whether it warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount? 10. In those circumstances, the impugned order of the learned Appellate Court is set side and restored the application^filedby the appellant U/s.389(1) Cr.P.C., corresponding to^section430of ■BNSS before the Appellate Court. The petitioner/accused shall appear before the learned Appellate Court in 10 (ten)^daysfrom the date of receipt of copy of this order. On such appearance, the

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103^^10^ A 11 ji » ,, rM=..a,c ^ouri snail consider the application afresh and dispose of the same as expeditiously as possible, preferably within seven (07) days. Till then, the sentence i imposed by the learned trial Court stands suspended. If the petitioner/accused fails to appear before the learned Appellate Court as directed above, the Criminal Petition stands dismissed without recourse to the Court.

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