Anuj Ahuja Vs Sumitra Mittal

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: March 11, 2025 % Pronounced on: March 17, 2025

+ CRL.M.C. 1327/2025 & CRL.M.A. 5884/2025-Stay

ANUJ AHUJA .....Petitioner Through: Dr. Amit George, Ms. Ananya Sikri, Ms. Medhavi Bhatia, Ms. Ibansara Syiemlieh, Mr. Dushyant K. Kaul and Ms. Rupam Jha, Advocates

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Versus

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SUMITRA MITTAL .....Respondent Through: Mr. F. K. Jha and Mr. Gaurav Jha, Advocates

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CRL.M.C. 1341/2025 & CRL.M.A. 5921/2025-Stay

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ANUJ AHUJA .....Petitioner Through: Dr. Amit George, Ms. Ananya Sikri, Ms. Medhavi Bhatia, Ms. Ibansara Syiemlieh, Mr. Dushyant K. Kaul and Ms. Rupam Jha, Advocates

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Versus

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RAJESH MITTAL .....Respondent Through: Mr. F. K. Jha and Mr. Gaurav Jha, Advocates

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CORAM:

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HON’BLE MR. JUSTICE SAURABH BANERJEE

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J U D G M E N T

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By way of the present petitions under Section 528 of the Bhartiya

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CRL.M.C. 1327/2025 and CRL.M.C. 1341/2025

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Nagrik Suraksha Sanhita, 2023 ( Section 482 of the Code of the Criminal Procedure, 1973 ), the petitioner, Anuj Ahuja, seeks quashing of two impugned order(s) both dated 27.01.2025 passed in C.A. No.138/2024 and C.A. No.139/2024 entitled “ Anuj Ahuja vs. Rajesh Mittal ”¹ by the learned Addl. Sessions Judge, Rohini Courts, Delhi² . Vide the two impugned order(s), the learned ASJ dismissed the application(s) of the petitioner seeking waiver of deposit of 20% of the compensation amount to suspend both the orders of sentence both dated 08.07.2024 in Ct. Cas. No.2196/2020 and Ct. Cas. No.2197/2020 passed by the learned Metropolitan Magistrate, Rohini Courts, Delhi³ , under Section 138 of the Negotiable Instruments Act, 1881⁴ .

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Pithily put , the disputes inter se petitioner and respondent(s) emanate from two financial transactions between them, however, since the factual assertions and the case of the parties, including the legal issues arising therein are the same and Ms. Sumitra Mittal, the respondent in Crl.M.C. 1327/2025 5 is the mother of Mr. Rajesh Mittal, the respondent in Crl.M.C. 1341/2025 , both the petitions have been taken up together and being dealt with vide this common judgment.

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As per the petitioner, he is engaged in real estate business and being acquainted with both respondents in the past, he had taken loans from Mr. Rajesh Mittal from time to time and repaid them within the stipulated time as

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1 Hereinafter referred as “ impugned orders ”

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2 Hereinafter referred to as “ learned ASJ ”

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3 Hereinafter referred to as “ learned MM ”

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4 Hereinafter referred as “ NI Act ”

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5 Hereinafter collectively referred as “ respondents ”

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well. Once both respondents allegedly collectively advanced monetary loan of Rs.53,00,000/- to the petitioner since, he had incurred losses in his business and also wanted to get his sister married. Against payment thereof, the petitioner issued two post-dated cheques as security bearing nos.47870 and 47871 for Rs.25,00,000/- and Rs.28,00,000/- drawn on IDBI Bank, Azadpur, Delhi in the name of the two respondents herein respectively.

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As per respondent(s), both the said cheques were dishonoured due to ‘ insufficient funds ’ upon their presentation, the respondent Sumitra Mittal filed Ct. Case No.2197/2020 qua cheque bearing nos.47871 for Rs.25,00,000/- drawn on IDBI Bank, Azadpur, Delhi as also Mr. Rajesh Mittal filed Ct. Case No.2196/2020 qua cheque bearing no.47870 for Rs.28,00,000/- drawn on IDBI Bank, Azadpur, Delhi, under Section 138 of the NI Act at the same time before the learned MM. 5. In both complaint cases, the learned MM found the petitioner guilty and convicted him under Section 138 read with Section 141 of the NI Act vide two separate orders, both dated 01.07.2024 passed in both the cases. 6. Being aggrieved, availing his statutory remedy, the petitioner filed C.A. No.139/2024 and C.A. No.138/2024 under Section 148 of the NI Act before the learned ASJ challenging both the aforesaid orders of conviction(s) and sentence(s) dated 01.07.2024 passed by the learned MM respectively. The learned ASJ, while admitting the two appeals on 07.08.2024, granted suspension of the aforesaid sentence(s), albeit , subject to deposit of 20% of the compensation amount in both cases respectively. When the two appeals were again listed before the learned ASJ on 23.09.2024, since the petitioner

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had not complied with the earlier order(s), the petitioner was once again “ … … directed to deposit the 20% of the compensation amount, in compliance of previous order dated 07.08.2024 on or before the NDOH. … …”.

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Thereafter, the petitioner preferred two separate applications seeking waiver of deposit of 20% of the compensation amount, in both the pending appeals before the learned ASJ. When the said applications were listed on 02.12.2024, relying upon Jamboo Bhandari vs M.P. State Industrial Development Corporation Ltd. & Ors.⁶ , the petitioner sought waiver of the condition for deposit of 20% of the compensation amount imposed vide order dated 07.08.2024 or else it would lead to deprivation of his right of appeal.

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The learned ASJ, not in agreement with the aforesaid submission of the petitioner, dismissed both the applications, vide two separate impugned order(s) both dated 27.01.2025. The petitioner seeks to challenge the said impugned order(s) dated 27.01.2025 by way of the present two petitions before this Court.

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Learned counsel for the petitioner, Dr. Amit George, has primarily argued that the learned ASJ has erred in treating the condition of 20% deposit of the compensation amount under Section 148 of the NI Act as an absolute and mandatory requirement, even though the same actually is a discretion to be exercised by the appellate Court and depends upon the specific circumstances of each case. 10. As per Dr. Amit George, in both appeals, the learned ASJ has wrongly presumed the financial capacity of the petitioner by erroneously attributing

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6 (2023) 10 SCC 446

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CRL.M.C. 1327/2025 and CRL.M.C. 1341/2025

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ownership of a saree business to him, even though the actual owner of the business was Ms. Sumitra Mittal, the respondent in Crl.M.C. 1327/2025. This, in itself has led to a wrongful assessment of the ability of the petitioner to pay and has caused grave injustice to him. Thereafter, relying upon Jamboo Bhandari (supra) , Rakesh Ranjan Shrivastava vs. State of Jharkhand & Anr.⁷ , C.R. Balasubramanian vs. P. Eswaramoorthi⁸ , Baiju vs. State of Kerala⁹ , Dr. Amit George, submits that Section 148 of the NI Act does not impose a blanket requirement for deposit and the Court must exercise discretion in a fair and just manner. In fact, Dr. Amit George submits that by placing an undue financial burden on the petitioner without considering his capacity to pay effectively, deprives him of the right to appeal, thereby causing him irreparable loss, harm and injury.

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Controverting the above, learned counsel for the respondents in both the petitions, Mr. F.K. Jha, supporting the two impugned orders submits that the requirement of deposit under Section 148 of the NI Act is a safeguard meant to protect the rights of complainants ( like the respondents herein ) in cases under Section 138 of the Act. As per Mr. F.K. Jha, the petitioner had failed to establish any genuine financial incapacity and mere claims of hardship do not entitle an accused like the petitioner herein, from exemption of statutory obligations. Mr. F.K. Jha submits that the petitioner had deliberately delayed compliance with the earlier order(s) passed on 07.08.2024 and 23.09.2024 in both the appeals and further that the present

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7 (2024) 4 SCC 419

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8 2024:MHC:322

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9 2023 SCC OnLine Ker 10204

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petitions were merely a dilatory tactic to avoid fulfilling his financial liabilities.

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Mr. F.K. Jha also submits that since the petitioner has not challenged either of the two earlier orders dated 07.08.2024 and 23.09.2024 passed by the leaned ASJ in both the appeals, the same are deemed to have been accepted by the petitioner and thus, the present petitions are not maintainable. 13. Mr. F.K. Jha lastly submits that the ratio in Jamboo Bhandari (supra) is not applicable to the facts of the present case, more so, since the condition of pre-deposit was imposed in accordance with the legal provisions and that the learned ASJ exercised its discretion judiciously.

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This Court has heard both Dr. Amit George, learned counsel for petitioner and Mr. F.K. Jha, learned counsel for both the respondents in the present petitions and has also carefully perused the documents on record as well, as well as the judgments cited at the Bar.

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Since the issue before this Court hinges upon the interpretation of Section 148 of the NI Act, which was subsequently incorporated to the NI Act vide the Negotiable Instruments (Amendment) Act, 2018 ( Act No. 20 of 2018 ), the relevant part thereof is reproduced hereunder:-

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“ 148.(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 :

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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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[Emphasis supplied]

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Thus, what entails from the above is that in an appeal filed before the appellate Court ( like the learned ASJ herein ), though Section 148 of the NI Act has been incorporated with an aim to prioritize the speedy disposal of the whole machinery involved in complaints involving cheque bouncing cases as well as to curb the dilatory tactics exercised by a party who has already been pronounced as “ guilty ” by virtue of a final judgment passed by the learned MM in an already adjudicated proceedings under Section 138 of the NI Act as also for safeguarding the interests of the original complainant, however, at the same time, it also gave a leeway to such “ guilty ” person/ entity for proceeding with the appeal, albeit , subject to a minimum deposit of 20% of the fine or compensation awarded by the learned MM.

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Though the above gives extra teeth to the appellate Court ( like the learned ASJ herein ), however, this is also a balancing act brought out by the legislation for giving a level playing field to both the complainant as well as the “ guilty ” person/ entity involved in the complaint.

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Further, as apparent from the phraseology carefully used by the legislature in Section 148 , since the appellate Court ( like the learned ASJ herein ) “ … … may order the appellant to deposit… … ” the minimum deposit of 20% of the fine or compensation awarded by the learned MM, the same is clearly, subject to exercise of discretion by the appellate Court ( like the learned ASJ herein ). Furthermore, it is also clear therefrom that any order of deposit by the appellate Court ( like the learned ASJ herein ) is not

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compulsory and/ or mandatory and is thus, open to exercise of discretion and relaxation in exceptional cases, as and when the need arises. 19. In view of the aforesaid, such an order asking an appellant ( like the petitioner herein ) to deposit 20% of the fine or compensation awarded by the learned MM in a complaint under Section 138 of the NI Act, passed by the appellate Court ( like the learned ASJ herein ) while dealing with an appeal under Section 148 of the NI Act, has to reflect due application of mind as it ought not to be passed mechanically. Prima facie , therefore, in the considered opinion of this Court for exercising the discretion and relaxation in exceptional cases, as and when the need so arises, the appellate Court ( like the learned ASJ herein ) has to bear in mind various surrounding circumstances like those relating to the nature of transaction(s) involved; the relationship(s) inter-se the parties involved; the quantum of amount involved; the financial capacity of the parties; is the condition of deposit of 20% imposed upon the an appellant ( like the petitioner herein ) going to hamper the right of appeal of such an appellant, particularly, since the appellant ( like the petitioner herein ) is going to be called upon to deposit 20% of the fine or compensation awarded by the learned MM at the very initial stage itself, without the appellate Court ( like the learned ASJ herein ) proceeding to hear the appeal on merits involved, amongst other factors. 20. Interestingly, the Hon’ble Supreme Court, while dealing with a similar issue of deposit of 20% of the fine or compensation awarded by the learned MM in Section 148 of the NI Act, in Surinder Singh Deswal @

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Colonel S.S. Deswal & Ors. vs. Virender Gandhi¹⁰ held as under:-

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“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 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. Therefore amended Section 148 of the 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 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. 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

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10 (2019) 11 SCC 341

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CRL.M.C. 1327/2025 and CRL.M.C. 1341/2025

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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. ”

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In fact, more recently also the Hon’ble Supreme Court in Jamboo Bhandari (supra) , considering Surinder Singh Deswal (supra) , has also held as under:-

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“ 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. ”

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This Court also find that a learned Single Judge of the Kerala High Court in Baiju (supra) , while dealing with Section 148 of the NI Act and similar circumstances involved has also held as under:-

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“ 7. In the above Section, it is clearly stated that 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. There are two limbs in Section 148(1) of the Negotiable Instruments Act. First, the appellate court has to decide, whether to order the appellant to deposit the fine or compensation awarded by the trial court. The second limb is that, once it is decided to order deposit of fine or compensation, a minimum of twenty percent of the fine or compensation is to be ordered to deposited. Therefore, the duty of the appellate court is firstly to decide whether such a deposit is to be ordered. As observed by the Apex court in Jamboo Bhandari's case (supra), when an accused applies under S. 389 of the CrPC 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 within the exception or not. The appellate court while suspending a sentence cannot pass a blanket order

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in all cases to deposit 20% of the fine or compensation without assigning any reason. Moreover, once the court has decided to order deposit as per Section 148(1) of the Negotiable Instruments Act, the amount of deposit ordered by the Court can be varied from the minimum 20% of the fine or compensation to a higher percent of the fine or compensation. That also shows that a speaking order is necessary. Even if the court is imposing 20% of the fine or compensation as a condition for suspending the sentence, in the light of the principle laid down by the Apex Court in Jamboo Bhandari's case (supra), a reason is necessary. ”

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Hence, in addition to what is prefaced hereinabove qua what entails from Section 148 of the NI Act, as it also flows from the law summarised in both Surinder Singh Deswal (supra) and Jamboo Bhandari (supra) that “ … …Section 148 of the N.I. Act confers power upon the appellate Court to pass an order pending appeal to direct the appellant-accused therein to deposit the sum which shall not be less than 20% of the fine or compensation on an application under Section 389 of the Code of Criminal Procedure, 1973 [ Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023] seeking to suspend the sentence… … ” as also that “ … …normally the appellate Court will be justified in imposing the condition of deposit… … ” therein, however, in a given case wherein the said appellate Court is “ satisfied ” about such deposit of 20% being “ unjust or imposing… …will amount to deprivation of the right to appeal of the appellant… … ”, exceptions can be made thereto after recording specific reasons.

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In the above backdrop, it would be appropriate to first adjudicate as to whether the petitioner has been able to make out any exception for not to deposit 20% of the fine or compensation awarded by the learned MM before the learned ASJ as also whether the learned ASJ has exercised the discretion

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after taking into consideration the various factors ( paragraph 19 hereinabove ).

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As per the facts involved herein, on the first day of listing of the two appeals filed by the petitioner on 07.08.2024, the learned ASJ passed the following order:-

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“… … The impugned order of sentence dated 08.07.2024 stands suspended till the disposal of the present review petition and appellant is admitted to bail on his furnishing personal bond and surety bond in the sum of Rs.50,000/- to the satisfaction of the concerned Ld. JMFC/Ld. Link JMFC. The appellant is also directed to deposit 20% of the compensation amount within 60 days from today in the form of FDR in the name of this court … …”

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On the next date, i.e. 23.09.2024, since the petitioner had not complied with the earlier order, the learned ASJ passed the following order in both the appeals:-

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“ … …Appellant is directed to deposit 20% of the compensation amount, in compliance of previous order dated 07.08.2024 on or before NDOH. ”

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Without challenging any of the aforesaid earlier orders dated 07.08.2024 and 23.09.2024, the petitioner instead filed an application seeking waiver of deposition of 20% of the compensation amount in both the appeals before the learned ASJ wherein the two impugned orders under challenge have been passed by the learned ASJ recording as under:-

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“ The present application has been moved with the requests for waiving off deposition of 20% of compensation amount in consonance with section 148 of NI Act. Perusal of the TCR further shows that it is the case of respondent/ complainant that the cheque in question was issued by appellant in discharge of his legal liability towards respondent/ complainant to repay the loan taken by him for the marriage of his sister and to run his business. Keeping in view of the presumptions laid down in Negotiable Instruments Act, prima facie case is clearly made out in favour

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of respondent/complainant. Further, a detailed judgment of conviction has been passed against the present appellant against which the present appeal has been filed which is yet to be decided by this Court. Further, perusal of Trial Court Record reveals that appellant is in the business of Saree and his office is situated at Chandni Chowk, Delhi which goes on to shows that he is having financial capacity to deposit 20% of the compensation amount as directed by this Court vide order dated 07.08.2024. After perusal of the whole record of the present case and after considering the submissions made by both Ld. Counsel for complainant as well as respondent, this Court is of view that no case for waiving off deposition of 20% of compensation amount is made out in favour of appellant and the present case is not covered under an exceptional case where the afore-mentioned condition may be waived off. The present application is dismissed, accordingly. Appellant is again directed to deposit 20% of the compensation amount, in compliance of previous order dated 07.08.2024 failing which appropriate order shall be passed against him. ”

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This Court will deal with the issue of non-challenge to any of the two earlier orders dated 07.08.2024 and 23.09.2024 passed in the very same two appeals by the very same learned ASJ and non-compliance by the petitioner thereof and directly challenging the two impugned orders before this Court. 29. Since the petitioner has sought to challenge the reasonings in the two impugned orders passed by the learned ASJ, the issue of non-challenge to any of the two earlier orders dated 07.08.2024 and 23.09.2024 and/ or their non-compliance by the petitioner as also the other contentions raised by the learned counsel for the respondent(s) need not be gone into by this Court. Likewise, the contention of the learned counsel for respondent(s) herein that the petitioner had acquiesced with either of those two earlier orders dated 07.08.2024 and 23.09.2024 passed in the very same two appeals by the very same learned ASJ is of no significance. Therefore, in such a scenario

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wherein the reasonings given by the learned ASJ in the impugned orders are in question, the present petitions challenging them are per se maintainable. 30. Significantly, this leaves this Court to consider if in view of the above interpretation to the provision of Section 148 of the NI Act as also taking note of the judicial precedents by the Hon’ble Supreme Court in both Surinder Singh Deswal (supra) and Jamboo Bhandari (supra) , are the reasons given by the learned ASJ in the two impugned orders sufficient to sustain.

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A perusal of both the impugned orders passed by the learned ASJ reveal that they are premised “ Keeping in view of the presumptions laid down in Negotiable Instruments Act, prima facie case is clearly made out in favour of respondent/ complainant… … ” and merely because “ … …a detailed judgment of conviction has been passed against the present appellant against which the present appeal has been filed which is yet to be decided by this Court. ” as also the that the “ … …appellant is in the business of Saree and his office is situated at Chandni Chowk, Delhi which goes on to shows that he is having financial capacity to deposit 20% of the compensation amount… … ”.

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In the considered opinion of this Court, neither of the aforesaid factors spelt out as ought to be for the learned ASJ to direct the petitioner to deposit 20% of compensation amount as awarded by the learned MM vide order(s) dated 08.07.2024. I say so, since neither the presumptions of/ in the NI Act nor the appellant being pronounced as “ guilty ”, per se , can be held sufficient for calling upon any such “ guilty ” like the appellant thereto/ petitioner herein

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to deposit the 20% of compensation amount as awarded by the learned MM at the very threshold of the appeal itself. Similarly, since vide a detailed judgment passed by the learned MM, has convicted the appellant ( like the petitioner herein ) and is pronounced as “ guilty ” cannot qualify to be a reason, necessarily not a sufficient one, since the appeal thereagainst is already pending adjudication/ disposal before the very same learned ASJ and doing so will tantamount to pre-judging the case of the appellant. Lastly, it is a relevant factor that the learned ASJ has, significantly, wrongly recorded in the two impugned orders that the petitioner is in the business of Saree , when even the respondent(s) themselves have admitted in their reply stating that it was a “ … … typographical error in the order passed by the Ld. ASJ… … ”. 33. Similarly, because of the abovesaid, neither of the two impugned orders are in sync with the judicial precedents by the Hon’ble Supreme Court in both Surinder Singh Deswal (supra) and Jamboo Bhandari (supra) , especially, since at the end of the day, as held by the Hon’ble Supreme Court in Jamboo Bhandari (supra) that “ … …a purposive interpretation should be made of Section 148 of the N.I. Act. ”.

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Consequently, for the aforesaid reasons and analysis as also the settled position of law, this Court finds that there is no clear finding as it is not spelt out in any of the impugned orders as to whether the petitioner has been able to make out any exception for waiver of depositing 20% of the fine or compensation awarded by the learned MM before it as also the aforesaid factors considered by the learned ASJ and the reasons spelt out therein, and instead calling upon the petitioner to deposit 20% of the compensation

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amount as awarded by the learned MM in the two impugned orders, are insufficient.

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Resultantly, the impugned orders both dated 27.01.2025 passed by the learned ASJ are set aside and the applications in each of the appeals being C.A. No.139/2024 entitled Anuj Ahuja vs Sumitra Mittal as also C.A. No.138/2024 entitled Anuj Ahuja vs. Rajesh Mittal are remanded for their fresh consideration by the learned ASJ in terms of the established position of law.

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Needless to mention, it is also clarified that the earlier orders dated 07.08.2024 and 23.09.2024 shall not be given effect to by the learned ASJ till the disposal of the aforesaid two application(s) of the petitioner, seeking waiver of deposit of 20% of the compensation amount to suspend the order(s) of sentence both dated 08.07.2024 in Ct. Cas. No.2196/2020 and Ct. Cas. No.2197/2020 passed by the learned MM, afresh.

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