Allowed

syed ishrathulla hussaini v. Mr. Noor Ahmed N.M

Karnataka HC16 Jun 2022WP/4550/2020

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition quashing an order that directed a 10% deposit under Section 148 of the Negotiable Instruments Act. Relying on the Supreme Court, it held the 20% requirement is mandatory and applicable to pending appeals.

What did the court decide?

The impugned order directing 10% deposit is quashed; the respondent is directed to deposit a minimum of 20% of the fine or compensation within four weeks.

syed ishrathulla hussaini Vs Mr. Noor Ahmed N.M — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE, 2022 BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.4550 OF 2020 (GM-RES)

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BETWEEN:

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SYED ISHRATHULLA HUSSAINI S/O LATE S.A.HUSSAINI AGED ABOUT 55 YEARS 9SP20, FLAT NO.201 3^RD MAIN ROAD HBR LAYOUT, 2^ND STAGE BENGALURU – 560 045.

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... PETITIONER (BY SRI SYED ISHRATHULLA HUSSAINI, PARTY-IN-PERSON)

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AND:

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MR. NOOR AHMED N.M., S/O MR.N.M.NABI AGED ABOUT 36 YEARS C/O MR.V.SATISH NO.120, 1 FLOOR UNIT NO.9, CHIK BAZAAR ROAD, TASKER TOWN, BENGALURU – 560 051.

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... RESPONDENT

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(BY SRI SATISH V., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH UNDER SECTION 482 OF CR.P.C., PRAYING TO PERMIT THIS HUMBLE PETITIONER

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TO PARTICIPATE IN THE PROCEEDINGS AS PARTY IN PERSON; TO MODIFY THE INTERIM ORDER OF THE HONBLE XIII ADDITIONAL CITY CIVIL SESSION COURT MAYO HALL UNIT VIDE CRL.A NO.25120/2018 ANNEXURE-F PAGE NO.29-34 DTD.23.11.2019 AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner who is in person has knocked the doors of this Court in the subject petition seeking modification of the order passed by XIII Additional City Civil and Sessions Judge, Mayohall Unit, Bangalore in Criminal Appeal No.25120 of 2018 in terms of its order dated 23-12-2019 inasmuch as, the Court directs deposit of 10% of the amount of fine imposed on conviction upon the respondent contrary to the statute.

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Heard the petitioner in person and Sri V. Satish, learned counsel for the respondent.

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Sans details, facts in brief, are as follows:

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A transaction between the petitioner and the respondent

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leads to registration of a crime for offence under Section 138 of

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the Negotiable Instrument Act, 1881 (‘the Act’ for short) and invocation of Section 200 of the Cr.P.C. The Court takes cognizance of the offence on 7-02-2011 and registers criminal case in C.C.No.26468 of 2011. The respondent/accused was convicted and sentenced in terms of the order of the learned Magistrate dated 11-06-2018. The accused filed an appeal before the learned Sessions Judge in Criminal Appeal No.25120 of 2018. The learned Sessions Judge while directing suspension of sentence and staying conviction ordered deposit of 10% of the amount determined by the learned Magistrate. The order was passed on 23-12-2019. By then, the amendment to Section 148 of the Act had come in place where the accused was to deposit 20% of fine or compensation awarded by the trial Court. The petitioner herein filed his objections to the application seeking suspension of sentence and deposit of only 10% of the amount awarded. This is rejected in the impugned order. It is this order dated 23-12-2019 that is called in question in the subject petition, insofar it directs deposit of only 10% of the amount

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contrary to the statutorily prescribed minimum of 20% in terms of Section 148 of the Act.

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The petitioner would contend with vehemence that Section 148 of the Act though was amended on 01-09-2018 has retrospective effect even to cases that were filed prior to the amendment and the deposit directed by the Court at 10% runs counter to the statute and, therefore, it has to be modified for a deposit of 20% with liberty to the petitioner to withdraw the same in terms of the statute.

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On the other hand, the learned counsel appearing for the respondent would refute the submissions to contend that the Amendment Act of 2018 is prospective and the transaction that has taken place in the case at hand is prior to the amendment. The discretion is available to the learned Sessions Judge to direct deposit of appropriate amount and exercising such discretion, the appellate Court has directed deposit of 10%. Therefore, the petitioner has no right to seek modification of the said order.

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I have given my anxious consideration to the

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submissions made by the petitioner and the learned counsel for the respondent and perused the material on record.

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To consider the issue in the petition it is germane to notice Section 148 of the Act. One of the amendment that was brought about was to Section 148 of the Act by Act 20 of 2018 by way of insertion. Section 148 of the Act as it stands today reads as follows:

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“ 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:

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Provided that the amount payable under this subsection 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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The section directs that when an appeal is filed by the drawer of cheque under Section 138, the Appellate Court may order such sum which shall be minimum of 20% of the fine or compensation awarded by the trial Court. This is in addition to whatever interim compensation the complainant would be ordered to be entitled to under Section 143A. The said deposit is to be made within 60 days from the date of the order or within a further period not exceeding 30 days as may be directed by the Court on sufficient cause being shown by the appellant and the appellate Court after receipt of such deposit may direct release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal. If the accused is acquitted, the complainant will have to repay the amount so

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taken in terms of sub-section (3) of Section 148 of the Act and that shall be refunded within 60 days from the date of the order or within such period not exceeding 30 days as may be directed by the Court by sufficient cause being shown by the complainant.

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What would emerge from the scheme of Section 148 is that the Appellate Court has no discretion to reduce the amount so stipulated under sub-section (1) of Section 148 of the Act to be deposited by the drawer of the cheque who files an appeal on his conviction i.e., 20% of the total fine amount or compensation awarded by the trial Court and in addition to interim compensation awarded during the pendency of the trial. Therefore, the word ‘may’ will have to be read as ‘shall’ as the statute does not confer any discretion to reduce the minimum from 20%. This has to be deposited within 60 days extendable by 30 days on sufficient cause being shown. Therefore, there can be no extension also that could be granted by the learned Sessions Judge for deposit of the amount. Sub-section (3) of

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Section 148 confers discretion on the Appellate Court for directing release of the amount deposited by the appellant in favour of the complainant as the words deployed are ‘the Appellate Court may direct’ and ‘at any time during the pendency of the appeal’. The statute therefore here vests/confers such discretion upon the appellate Court for directing payment to the complainant and refund of the amount in the event of acquittal should also be done within an outer limit of 60 days extendable by 30 days on sufficient cause being shown by the complainant. Therefore, for deposit and refund there is no discretion conferred by the statute for the concerned Court for extension beyond, 90 days in each case. It is the aforesaid interpretation that is germane to be noticed in the case at hand.

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The afore-quoted facts are not in dispute. The learned Sessions Judge by order dated 16-07-2018 suspended the sentence subject to the appellant/accused depositing 10% of the compensation amount and on execution of personal bond for Rs.50,000/-. On the contention of the petitioner, the Court

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holds that the Act came into force in the year 2018 and the appeal is of the year 2018. Hence, it was not proper to accept the contention of the petitioner that the accused should deposit 20% of the cheque amount and rejects the prayer of the petitioner for directing deposit of 20%. The petitioner calls this order in question in the present petition. The issue whether the amendment to Section 148 of the Act is prospective or retrospective need not detain this Court for long or delve deep into the matter. The Apex Court in the case of SURINDER

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SINGH DESWAL v. VIRENDER GANDHI¹ has held as follows:

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“6.1 . The short question which is posed for consideration before this Court is, whether the first appellate court is justified in directing the appellantoriginal accused who have been convicted for the offence under Section 138 of the NI Act to deposit 25% of the amount of compensation/fine imposed by the learned trial court, pending appeals challenging the order of conviction and sentence and while suspending the sentence under Section 389 CrPC, considering Section 148 of the NI Act as amended?

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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 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:

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1 (2019) 11 SCC 341

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“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.

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3. It is, therefore, proposed to introduce the Negotiable Instruments (Amendment) Bill, 2017 to provide, inter alia, for the following, namely—

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(i) to insert a new Section 143-A in the said Act to provide that the court trying an offence under Section 138, may order the drawer of the cheque to pay interim compensation to the complainant, in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint;

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and in any other case, upon framing of charge. The interim compensation so payable shall be such sum not exceeding twenty per cent of the amount of the cheque; and

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(ii) to insert a new Section 148 in the said Act so as to provide that 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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4 . The Bill seeks to achieve the above objectives.”

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***

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“ 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:

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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 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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7. It is the case on behalf of the appellants that as the criminal complaints against the appellants under Section 138 of the NI Act were lodged/filed before Amendment Act 20 of 2018 by which Section 148 of the NI Act came to be amended and therefore amended Section 148 of the NI Act shall not be made applicable. However, it is required to be noted that at the time when the appeals against the conviction of the appellants for the offence under Section 138 of the NI Act were preferred, Amendment Act 20 of 2018 amending Section 148 of the NI Act came into force w.e.f. 1-9-2018. Even, at the time when the appellants submitted application(s) under Section 389 CrPC to suspend the sentence pending appeals challenging the conviction and sentence, amended Section 148 of the NI Act came into force and was brought on statute w.e.f. 1- 9-2018. Therefore, considering the object and purpose of the amendment in Section 148 of the NI Act and while suspending the sentence in exercise of powers under Section 389 CrPC, when the first appellate court directed the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial court, the same can be said to be absolutely in consonance with the Statement of Objects and Reasons of amendment in Section 148 of the NI Act.

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7.1. Having observed and found that because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of the enactment of Section 138 of the NI Act was being frustrated, Parliament

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has thought it fit to amend Section 148 of the NI Act, by which the first appellate court, in an appeal challenging the order of conviction under Section 138 of the NI Act, is conferred with the power to direct the convicted appellantaccused to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial court. By the amendment in Section 148 of the NI Act, it cannot be said that any vested right of appeal of the appellantaccused has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in Section 148 of the NI Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 1-9-2018 shall not be applicable has no substance and cannot be accepted, as by amendment in Section 148 of the NI Act, no substantive right of appeal has been taken away and/or affected. Therefore the decisions of this Court in Garikapati Veeraya [Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540] and Videocon International Ltd. [Videocon International Ltd. v. SEBI, (2015) 4 SCC 33] , relied upon by the learned Senior Counsel appearing on behalf of the appellants shall not be applicable to the facts of the case on hand. Therefore, considering the Statement of Objects and Reasons of the amendment in Section 148 of the NI Act stated hereinabove, on purposive interpretation of Section 148 of the NI Act as amended, we are of the opinion that Section 148 of the NI 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 NI Act, even in a case where the criminal complaints for the offence under Section 138 of the NI Act were filed prior to Amendment Act 20 of 2018 i.e. prior to 1-92018. If such a purposive interpretation is not adopted, in that case, the object and purpose of amendment in Section 148 of the NI Act would be frustrated. Therefore, as such, no error has been committed by the learned first appellate court directing the

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appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial court considering Section 148 of the NI Act, as amended.

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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

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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 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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9. Now so far as the submission on behalf of the appellants, relying upon Section 357(2) CrPC that once the appeal against the order of conviction is preferred, fine is not recoverable pending appeal and therefore such an order of deposit of 25% of the fine ought not to have been passed and in support of the above reliance placed upon the decision of this Court in Dilip S. Dahanukar [Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC 528 : (2007) 3 SCC (Cri) 209] is concerned, the aforesaid has no substance. The opening words of the amended Section 148 of the NI Act are that “notwithstanding anything contained in the Code of Criminal Procedure….”. Therefore irrespective of the provisions of Section 357(2) CrPC, pending appeal before the first appellate court, challenging the order of conviction and sentence under Section 138 of the NI Act, the appellate court is conferred with the power to direct the appellant to deposit such sum pending appeal which shall be a minimum of 20% of the fine or compensation awarded by the trial court.

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10. In view of the above and for the reasons stated hereinabove, the impugned judgment and order [Surinder

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Singh Deswal v. Virender Gandhi, 2019 SCC OnLine P&H 746] passed by the High Court does not call for any interference.

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11. At this stage, the learned Senior Advocate appearing on behalf of the appellants has requested to grant the appellants some more time (three months' time) to deposit the amount as per the order passed by the first appellate court, confirmed by the High Court. The said prayer is opposed by the learned Advocate appearing on behalf of the original complainant. It is submitted that as per amended Section 148 of the NI Act, the appellantaccused have to deposit the amount of compensation/fine as directed by the appellate court within a period of 60 days which can be further extended by a further period of 30 days as may be directed by the Court on sufficient cause being shown by the appellants. However, in the facts and circumstances of the case and considering the fact that the appellants were bona fide litigating before this Court challenging the order passed by the first appellate court, in exercise of powers under Article 142 of the Constitution of India and in the peculiar facts and circumstances of the case and the amount to be deposited is a huge amount, we grant further four weeks' time from today to the appellants to deposit the amount as directed by the first appellate court, confirmed by the High Court and further confirmed by this Court.”

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(Emphasis supplied)

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In the light of the judgment of the Apex Court holding that amendment to Section 148 of the Act was retrospective and would become applicable against the order of conviction and suspension of sentence even if the complaints were filed prior to the amendment i.e., prior to 01-09-2018, the order that rejects

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the prayer of the petitioner would fall foul of the judgment rendered by the Apex Court in the aforesaid case. The reliance that is placed by the learned Sessions Judge to hold that the amendment is prospective in the case of G.J.RAJA v. TEJRAJ SURANA – 2019 Crl.L.J. 4267 was concerning Section 143A of the Act which was also amended by the very same amending Act. Section 143A which directs payment of interim compensation to the complainant is held to be prospective. There was no obfuscation for the learned Sessions Judge in interpreting the amendment qua Section 148 of the Act. But, the learned Sessions Judge appears to have generated one. Therefore, the same warrants appropriate interference.

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10. For the aforesaid reasons, the following:

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ORDER

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(i) Writ Petition is allowed.

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(ii) The order dated 23-12-2019 passed by the XIII Additional City Civil and Sessions Judge, Mayohall Unit, Bangalore in Criminal Appeal No.25120 of 2018 stands quashed.

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(iii) The respondent/appellant before the learned Sessions Judge shall deposit a minimum of 20% of the amount so determined by the learned Magistrate as fine or compensation within a period of four weeks’ from the date of receipt of a copy of this order excluding the deposit already made.

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(iv) The learned Sessions Judge will be at her discretion to pass any order in terms of sub-section (3) of Section 148 of the Act directing release of the amount deposited to the complainant.

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(v) Since the issue is of the year 2010, the Court shall endeavour to conclude the proceedings as expeditiously as possible and at any rate within a period of six months from the date of receipt of a copy of this order.

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Sd/JUDGE

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bkp

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CT:MJ

syed ishrathulla hussaini v. Mr. Noor Ahmed N.M

Case brief

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syed ishrathulla hussaini v. Mr. Noor Ahmed N.M

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