Deepak Vitthal Rao Vs the State of Maharashtra and Anr.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.1772 OF 2022

¶4

Deepak Vitthal Rao

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Petitioner

¶6

versus

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The State of Maharashtra and another

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Respondents

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WITH

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WRIT PETITION NO.1775 OF 2022

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Deepak Vitthal Rao
 versus

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The State of Maharashtra and another

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Petitioner

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Respondents

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WITH

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WRIT PETITION NO.2022 OF 2022

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Deepak Vitthal RaoPetitioner
 versus

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The State of Maharashtra and anotherRespondents

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Mr.Vincent X.D’Silva with Mr.Sujit A. Mane, Advocate for petitioner.
Mr.Jugal Kanani, Advocate for respondent no.2.
Mr.Arfan Sait, APP, for State.

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CORAM :PRAKASH D. NAIK, J.

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DATE :16th June 2022

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PC :

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1.Writ Petition Nos.1775 of 2022 and 2022 of 2022 are not on
board. Taken on board. All the petitions involve common issue and
connected. Hence disposed off by common order.

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MANISH Digitally signed byMANISH SURESH SURESH THATTE THATTE Date: 2022.06.3009:54:53 +0530

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2.The petitioner in all these petitions has challenged the order
dated 29th April 2022 passed by the Sessions Court, Greater Bombay
releasing compensation amount of Rs.67,75,000/- to the
complainant.

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3.The petitioner is convicted for the offence under Section 138
of Negotiable Instruments Act (`the Act’ for short) vide judgment
and order dated 10th February 2021 in three different complaints viz.
CC No.340/SS/2017, CC No.226/SS/2017 and CC No.339/SS/2017.
Petitioner is sentenced to suffer imprisonment of ten months and to
pay compensation of Rs.1,35,00,000/- in CC No.340/SS/2017. He is
sentenced to suffer imprisonment for eight months and directed to
pay compensation of Rs.1,15,00,000/- in CC No.226/SS/2017. He is
sentenced to suffer simple imprisonment for two months and pay
compensation of Rs.21 lakh in CC No.339/SS/2017.

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4.The petitioner had challenged the judgment of convictions by
preferring three appeals before the Court of Sessions viz Criminal
Appeal Nos.108 of 2021, 109 of 2021 and 110 of 2021. The appeals
are admitted and sentence of imprisonment was suspended on the
condition that petitioner shall deposit 25% compensation amount of
Rs.67,75,000/-. The said amount has been deposited by petitioner in
the Appellate Court. The respondent no.2/complainant preferred
common application seeking permission to withdraw the
compensation amount deposited by appellant as per provision of
Section 148(3) of the Negotiable Instruments Act. The said
application was allowed by order dated 29th April 2022 directing that
the amount of Rs.67,75,000/- deposited in the Court be released in
favour of respondent no.2/complainant subject to conditions in the
proviso of sub-section 3 of Section 148 of Negotiable Instruments
Act.

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5. The grievance of the petitioner is that although the amount is

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deposited by the petitioner, the respondent no.2-complainant should
not be allowed to withdraw the said amount.

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6.Learned counsel for petitioner submitted that the petitioner
has good case on merits. Petitioner was not represented properly
before Trial Court. His case is prejudiced and damaged due to
mistakes of his advocate. Statement under section 313 of Cr.P.C. is
recorded without his consent and advocate has admitted liability.
The amount was paid to the complainant. There was no liability.
The trial was not conducted properly. In the event amount is
returned to respondent no.2-complainant, grave prejudice will be
caused to the petitioner. Section 148(3) of the Act refers to the word
“may” which would indicate that it is not mandatory to release the
amount to the complainant. The order passed by learned Appellate
Court allowing withdrawal of the amount by complainant is required
to be set aside. The petitioner has relied upon the statement of
payment allegedly made to the complainant.

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7.Learned counsel for respondent no.2 vehemently opposed the
prayer sought in this petition. It is submitted that the petitioner
cannot urge the merits of the petition. He has been convicted for the
offence u/s.138 of the Act. The appeal is pending before the
concerned Court. Merits of the matter will be decided at the
appropriate stage. There is no illegality in the impugned order
passed by the Court. The apprehension, if any, expressed by the
accused is taken care of in proviso of sub-section 3 of Section 148 of
the Act wherein it is provided that if accused 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

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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. It is
further submitted that if the amount is not allowed to be withdrawn,
the object and purport of Section 148 would be frustrated. This
provision has been incorporated by amendment of 2018. The
statement of object and reasons which necessitated the amendment
which led to the introduction of Section 148 of the Act, is required to
be taken into consideration. The word `may’ appearing in the said
provision would not restrict release of compensation amount. In the
light of object of the Act and amended provision, compensation
amount has to be released. The petitioner-accused has been directed
to pay total compensation in all the three complaints to the tune of
Rs.2.71 crores and during pendency of appeal the petitioner has been
directed to deposit Rs.67,75 lakh which is 25% of the total
compensation. There is no illegality in the order passed by Appellate
Court.

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8.I have perused the documents on record. Undisputedly the
petitioner has been convicted in three complaints for the offence
u/s.138 of Act. The primary contention of petitioner is that
petitioner was not represented properly before Trial Court. The trial
was not fair The substantial amount was parted to the complainant.
Learned Magistrate on appreciating the evidence on record has
convicted the petitioner and sentenced to suffer imprisonment as
well as directed to pay compensation. The legality of judgments of
conviction is yet to be decided. At this stage it would not be
advisable to make any comment on the merits of appeals which are

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pending before appropriate Court. The total amount of
compensation is Rs.2,71,00,000/-. The petitioner is directed to pay
25% of total compensation.

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9. Section 148 of Negotiable Instruments Act reads as follows :

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“ 148.Power of Appellate Court to order payment pending appeal against conviction .-

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(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 the sub-
section shall be in addition to any interim compensation
paid by the appellant under section 143-A.

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(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.

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(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 :

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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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10.On reading the aforesaid provision it is apparent that Appellate

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Court can direct the convict to deposit the amount towards
compensation which shall not be less than 20% of the fine or
compensation awarded by the trial Court. The said provision was
incorporated by amendment which came into force in 2018. The
statement and object of Section 148 of the said Act is as follows :

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“2.…It is proposed to amend the said Act
with a view to address the issue of undue delay to 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 creditability 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”.

¶49

11.Learned Sessions Judge who is seized of the appeals preferred
by the petitioner has directed the petitioner to deposit 25% amount
of compensation. The amount has been deposited by the petitioner,
however, objection of the petitioner is that amount should not be
allowed to be withdrawn by the complainant-respondent no.2. Thus,
there is no challenge to the order directing depositing the said
amount but the objection is only to the extent of permitting
respondent no.2 to withdraw the said amount. The contention of
petitioner that he did not get fair trial or that there was no liability to
pay the amount, are the issues which are subject matter of appeal. In
any case the grounds urged by petitioner does not appeal to me to
stop release of amount. Assuming that Section 148(3) refers to word
`may direct release’, no case is made out by petitioner, not to release
the amount. It is also pertinent to note that sub-section (3) of
Section 148 incorporated proviso to protect interest of accused in the

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event he is acquitted. The appellate Court, in the present case has
released the amount to complainant. Subject to condition in the
proviso of sub-section (3) of Section 148 of Negotiable Instruments
Act. Hence, these petitions are devoid of merit and required to be
dismissed.

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ORDER

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(i)Criminal Writ Petition No.1772 of 2022, Writ Petition No.1775
of 2022 and Writ Petition No.2022 of 2022 are dismissed and
disposed of.

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(PRAKASH D. NAIK, J.)

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MST

Deepak Vitthal Rao v. the State of Maharashtra and Anr.

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Deepak Vitthal Rao v. the State of Maharashtra and Anr.

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