Allowed

M/S Tcp Techno Power Corporation (Llp) v. Sri Bunty K Mehta

Karnataka HC18 Sept 2024CRL.P/11433/2023

Case brief

AI extract

What is this about?

Convicted accused under Section 138 NI Act challenged appellate court orders imposing deposit of 20% of fine as condition precedent to suspension of sentence. Relying on Jamboo Bhandari, the High Court quashed the orders and remitted the applications for reconsideration in consonance with that ruling; sentence stands suspended meanwhile.

What the court decided

AI extract

M/S Tcp Techno Power Corporation (Llp) Vs Sri Bunty K Mehta — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 11433 OF 2023

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C/W

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CRIMINAL PETITION NO. 11641 OF 2023

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IN CRL.P No. 11433/2023

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BETWEEN:

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M/S. TCP TECHNO POWER CORPORATION (LLP) UNIT NO.2, NO.25-A, 2^ND PHASE PEENYA INDUSTRIAL AREA BENGALURU - 560 058 REPRESENTED BY ITS MANAGING PARTNER.

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Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

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SRI K.S.ASHWATHNARAYANA MANAGING PARTNER M/S. TCP TECHNO POWER CORPORATION (LLP) UNIT NO. 2, NO.25-A, 2^ND PHASE PEENYA INDUSTRIAL AREA BENGALURU - 560 058.

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…PETITIONERS

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(BY SRI ANOOP HARANAHALLI, ADVOCATE)

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AND:

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SRI BUNTY K.MEHTA S/O KIRTI MEHTA

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NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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AGED ABOUT 39 YEARS PROPRIETOR F.S.ENTERPRISES SY. NO.58, ANDRAHALLI MAIN RAOD YESHWANTHAPURAHOBLI BENGALURU – 560 091.

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SRI ARUN KUMAR PARTNER M/S. TCP TECHNO POWER CORPORATION (LLP) UNIT NO. 2, NO.25-A, 2^ND PHASE PEENYA INDUSTRIAL AREA BENGALURU - 560 058.

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…RESPONDENTS

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(BY SRI M.R.BALAKRISHNA, ADVOCATE)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C.,(528 OF BNSS) PRAYING TO SET ASIDE THE ORDER DATED 04.10.2023, PASSED IN CRL.APL.NO.1276/2023, BY THE LXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU, TO THE EXTENT OF THE CONDITION IMPOSED ON THE PETITIONERS TO DEPOSIT 20% OF THE FINE AMOUNT IMPOSED BY THE TRIAL COURT.

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IN CRL.P NO. 11641/2023

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BETWEEN:

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M/S. TCP TECHNO POWER CORPORATION (LLP) UNIT NO.2, NO.25-A, 2^ND PHASE PEENYA INDUSTRIAL AREA BENGALURU - 560 058 REPRESENTED BY ITS MANAGING PARTNER K.S.ASHWATHNARAYAMA.

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3 - NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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SRI K.S.ASHWATHNARAYANA MANAGING PARTNER M/S. TCP TECHNO POWER CORPORATION (LLP) UNIT NO. 2, NO.25-A, 2^ND PHASE PEENYA INDUSTRIAL AREA BENGALURU - 560 058.

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...PETITIONERS

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(BY SRI. ANOOP HARANAHALLI, ADVOCATE)

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AND:

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SRI BUNTY K.MEHTA S/O KIRTI MEHTA AGED ABOUT 39 YEARS PROPRIETOR F.S.ENTERPRISES SY NO.58, ANDRAHALLI MAIN ROAD YESHWANTHPURA HOBLI BENGALURU – 560 091.

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SRI ARUN KUMAR PARTNER M/S. TCP TECHNO POWER CORPORATION (LLP) UNIT NO. 2, NO.25-A, 2^ND PHASE PEENYA INDUSTRIAL AREA BENGALURU - 560 058

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...RESPONDENTS

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(BY SRI. M.R.BALAKRISHNA, ADVOCATE)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C.,(528 OF BNSS) PRAYING TO SET ASIDE THE ORDER DATED 04.10.2023, PASSED IN CRL.APL.NO.1277/2023, BY THE LXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU, TO THE

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EXTENT OF THE CONDITION IMPOSED ON THE PETITIONERS TO DEPOSIT 20% OF THE FINE AMOUNT IMPOSED BY THE TRIAL COURT.

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THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioners – accused Nos.1 and 2, common in both the petitions, are knocking at the doors of this Court calling in question orders dated 04.10.2023 passed in Crl.A.Nos.1276/2023 and 1277/2023, by the LXIX Additional City Civil and Sessions Judge, Bengaluru, whereby, directs the petitioners to deposit 20% of the fine amount within one month, before the trial Court as a condition precedent for suspension of sentence, on an application filed by the petitioners under Section 389(1) of the Cr.P.C. seeking stay of the judgment of conviction and order of sentence dated 17.08.2023, passed by the 27^th Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.Nos.1643/2015 and 3522/2015.

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NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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Heard Sri Anoop Haranahalli, learned counsel for petitioners and Sri M.R.Balakrishna, learned counsel for respondent No.1.

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Facts in brief, germane are as follows:

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A transaction between the complainant – respondent No.1 and the petitioners leads the complainant to the concerned Court invoking Section 200 of the Cr.P.C. for the offence under Section 138 of the Negotiable Instruments Act (for short ‘the Act’). The issue in the lis is not concerned about the merit of the matter before the learned Magistrate as the petitioners – accused Nos.1 and 2 have been convicted for the offence under Section 138 of the N.I.Act, whereas, respondent No.2 – accused No.3 has been acquitted of the offence.

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The issue in the subject petitions is, whether the Appellate Court is justified in imposing the condition of deposit of 20% of the fine amount within one month for suspending the sentence for period of 3 months, making the said deposit as condition precedent.

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Learned counsel for petitioners submits that as on today, 20% of the cheque amount has been deposited before the concerned Court and the liability in its entirety has been complied with; accused No.3 is acquitted of the offence and therefore, he would seek that the deposit of 20% of the fine amount be obliterated from the order by placing reliance upon the judgment of the Apex Court in the case of JAMBOO BHANDARI V. M.P. SIDC LTD. reported in (2023) 10 SCC 446.

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Per contra , learned counsel for respondent No.1 would refute the submissions to contend that there is no ground urged in the application seeking suspension of sentence or exemption from depositing 20% of the fine amount as directed by the concerned Court and that the judgment in the case of

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JAMBOO BHANDARI V. M.P. SIDC LTD. reported in (2023)

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10 SCC 446 is not applicable to the case at hand. He would seek dismissal of the petitions.

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NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.

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What has driven the petitioners to this Court in the subject petition is the order passed by the order passed by the appellate Court while granting suspension of sentence. One such order in Crl.A.No.1276/2023 reads as follows:

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“ ORDER

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The operation and execution of the order of sentence passed ;by the 27^th ACMm in CC No.1643/2015 dated 17.8.2023 is hereby suspended for a period of 3 months subject to condition that the appellant shall deposit 20% of the fine amount within one month.

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The appellant shall execute personal bond for Rs.5 Crore with one surety to the satisfaction of the trial court within one month from the date of this order failing which this stay order automatically stands recalled.”

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The petitioners get convicted for the offence and approaches the appellate Court seeking suspension of sentence and on the afore-quoted condition of 20% of the fine amount, as a condition precedent, the appellate Court grants suspension of sentence. It now becomes apposite to quote the judgment

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NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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of the Apex Court in the case of JAMBOO BHANDARI V. M.P. SIDC LTD. reported in (2023) 10 SCC 446

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“3. An appeal was preferred by the appellants before the Sessions Court. Relying upon Section 148 NI Act, the Sessions Court granted relief under Section 389 of the Code of Criminal Procedure, 1973 (for short “CrPC”) subject to condition of the appellants depositing 20% of the amount of compensation. Vide the impugned judgment [Jamboo Bhandari v. M.P. SIDC Ltd., 2022 SCC OnLine MP 5852]^, [Satish Ji Bhandari v. M.P. SIDC Ltd., 2022 SCC OnLine MP 5853] , the High Court has confirmed the order of the Sessions Court.

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4. The High Court relied upon the decision of this Court in Surinder Singh Deswal v. Virender Gandhi [Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 : (2019) 3 SCC (Cri) 461 : (2019) 3 SCC (Civ) 765] . The High Court proceeded on the footing that, as this Court has interpreted the word “may” appearing in Section 148 as “shall”, the relief of suspension of sentence under Section 389CrPC can be granted only by directing the accused to deposit minimum of 20% of the compensation/fine amount.

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5. Para 8 of the decision of this Court in Surinder Singh Deswal [Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 : (2019) 3 SCC (Cri) 461 : (2019) 3 SCC (Civ) 765] reads thus : (SCC p. 350)

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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 NI Act as amended, the appellate court “may” order the appellant to deposit such sum which shall be a minimum of 20% of the

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NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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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 NI Act as amended is concerned, considering the amended Section 148 NI Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 NI Act, though it is true that in the amended Section 148 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 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 389CrPC to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 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 NI Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 NI Act, but also Section 138 NI Act. The Negotiable Instruments Act has been

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NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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

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(emphasis supplied)

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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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7. Section 389 CrPC of an accused who has been convicted for offence under Section 138 NI Act, it is always open for the appellate court to consider whether it is an exceptional case which warrants grant of suspension of sentence without 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

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NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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is an exceptional case, the reasons for coming to the said conclusion must be recorded.

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8. 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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9. We disagree with the above submission. When an accused applies under Section 389 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 in exception or not.

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10. In these cases, both the Sessions Courts and the High Court have proceeded on the erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception.”

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(Emphasis supplied)

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The Apex Court holds that the concerned Court shall not make it a condition precedent unless it records the reasons in writing as the case is exceptional, it would merit the condition of depositing 20% of the fine amount. It is also held that deposit of 20% of the cheque amount even is not an absolute

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rule and if the prayer of the convicted accused is that they unable to pay the amount, such prayer should be considered by the appellate Court and the absolute rule under Section 148 of the Act, would not operate in all circumstances.

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Learned counsel for petitioners in the case at hand though has not pleaded any inability to make the payment in the application seeking suspension of sentence, the contention in the present petition is clear that the petitioner has been saddled with the entire liability, after the acquittal of accused No.3. He submits that the petitioners have good case on merits and have deposited the 20% of the fine amount as ordered by the appellate Court. In that light, I deem it appropriate to set aside the orders and remit the matters back to the hands of the concerned Court for reconsideration of the applications and pass appropriate order strictly in consonance with the judgment of the Apex Court in the case of JAMBOO BHANDARI supra .

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NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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For the aforesaid reasons, the following:

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ORDER

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a. The criminal petitions are allowed.

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b. The orders dated 04.10.2023, passed by the LXIX Additional City Civil and Sessions Judge, Bengaluru, in Crl.A.Nos.1276/2023 and 1277/2023, stand quashed.

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c. The matters are remitted back to the concerned Sessions Court to reconsider the applications and pass appropriate orders strictly in consonance with the judgment of the Apex Court in the case of JAMBOO BHANDARI supra and also the observations made in the course of this Court, within four weeks from the date of receipt of the copy of the order.

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d. This would not mean that 20% of the fine amount, which is already in deposit be permitted to be withdrawn by the accused, it shall remain, subject to the orders passed by the concerned Court.

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NC: 2024:KHC:38953 CRL.P No. 11433 of 2023 C/W CRL.P No. 11641 of 2023

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e. This order is concerning 20% of the amount involved would not come in the way of the conclusion of the proceedings before the concerned Court.

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f. Till such time, the order of sentence on conviction

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passed against the petitioners shall stand suspended.

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Sd/(M.NAGAPRASANNA)

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JUDGE

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NVJ List No.: 1 Sl No.: 9 CT:SS

M/S Tcp Techno Power Corporation (Llp) v. Sri Bunty K Mehta

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M/S Tcp Techno Power Corporation (Llp) v. Sri Bunty K Mehta

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