Suresh Chand v. Deep Chand

I

SURESH DEEP CHA

CORAM

Present :

SANJAY

¶12023, is

24.04.202 Palwal, in Chand, w 20% of th

¶2prosecute Act, 188 Divisiona judgment

18.02.202 1 - IN THE HIGH COURT OF PU AT CHANDI

CHAND

V/S AND

M: HON'BLE MR. JUSTICE S Mr.Pankaj Maini, Advocate for the petitioner. Mr. Akashdeep Singh, Advoc for the respondent.

*** Y VASHISTH, J. (Oral) Prayer in the present petition for quashing of the impugn 25 (Annexure P-4), passed by l n Criminal Appeal No.44 of 202 whereby, learned Appellate Cour he total compensation amount to Learned counsel for the petit d in a complaint under Section 1 (for short, 'the Act') and h al Judicial Magistrate, Palwal , u of conviction dated 17.02.20 25 (P-2) and sentenced to und

UNJAB AND HARYANA IGARH

CRM-M-28543-2025

Decided on : 22.05.20

…. PETITIONER

…. RESPONDENT SANJAY VASHISTH cate n filed under Section 528 of BN ned orders dated 17.03.2025 a learned Additional Sessions Jud 25, titled as 'Suresh Chand v. D rt directed the petitioner to depo respondent herein. tioner has stated that petitioner w 138 of the Negotiable Instrume he was convicted by learned S under Section 138 of the Act, v 025 and order of sentence da dergo simple imprisonment fo

SS, dge, eep osit was ents Sub vide ated period of Rs.30,00,

17.02.202 Sessions impugned suspended the compe to comply However,

17.03.202 Court is in Bhandari others, 2 considerin has been open for t exception without im amount. A exception recorded, Court be circumsta 2 - f eight months and was also 000/- to the complainant. Counsel further submits tha 25 (P-2), petitioner filed an ap Judge, Palwal and thereupon d orders dated 17.03.2025 a d the order of sentence qua petiti ensation amount. Due to the fin y with the orders dated 17.03.202 , counsel submits that even othe 25 and 24.04.2025 (Annexure P-n violation of the law settled by i v. M.P. State Industrial De 2024(1) SCC (Cri) 90, where ng the prayer under Section 389 convicted for offence under Se the Appellate Court to consider, nal case or not, which warrants g mposing the condition to depo And, if the Appellate Court com nal case, the reasons for comin which is missing in the presen elow has not appreciated the ances of the petitioner, as per

ordered to pay compensation at challenging the judgment da ppeal before the Court of learn learned Appellate Court vide and 24.04.2025 (Annexure P ioner, subject to the deposit 20% nancial constraints, petitioner fai 25 and 24.04.2025 (Annexure P-erwise also, impugned orders da -4) passed by the learned Appell Hon'ble Supreme Court in Jamb evelopment Corporation Ltd. a ein it has been held that wh of the Cr.P.C. of an appellant w ection 138 of the Act, it is alw , whether the appeal before it, is grant of suspension of sentence, osit 20% of the fine/compensat mes to the conclusion that it is ng to the said conclusion must nt case. It is submitted that learn e facts of the case and ot mandate of the Hon'ble Supre

of ated ned its -4), % of iled -4). ated late boo hile who ways s an but tion s an be ned ther Court in J

¶3notice, arg making p same by c

¶4record, it learned A amount aw with the s

¶5petition c because t prejudice

¶6orders dat Additiona issued by also in th and anoth

¶7and Musk while con has been h 3 - Jamboo Bhandari's case (supra) Mr. Akashdeep Singh, Adv gues that once the undertaking h ayment of the compensation am challenging the order before this After hearing learned couns t is apparent that sentence of Appellate Court subject to the de warded by learned trial Court. H same. This Court is of the view tha can be decided in limine and w the way this Court intends to d would be suffered by the compl This Court finds that the plea ted 17.03.2025 and 24.04.2025 al Sessions Judge, Palwal, is w y the Hon'ble Apex Court in Ja e case ofMuskan Enterprises a her, 2024 SCC Online SC 4107 The Hon'ble Apex Court in kan Enterprises case (Supra) nsidering Section 148 of the Act held that the object of Section 1

a). vocate, who appearing on advan has been given by the petitioner mount, he cannot wriggle out of Court. el for the parties and perusing the petitioner was suspended eposit of 20% of the compensat However, petitioner did not com at dispute raised through the pres without calling the other side he dispose of the present petition, ainant qua his rights. a of the petitioner is that impugn (Annexure P-4), passed by learn without adhering to the directi amboo Bhandari's case (supra) and anotherv. The State of Punj : Law Finder Doc Id #2680202 n Jamboo Bahndari case (Sup has laid down certain paramet for the purpose of interpretation 48 of the Act is not mandatorily

nce for by tion mply sent ere, ned ned ons ),as njab '. pra) ters n. It be follow the comp concerned before it.

¶8Hon'ble A Virender wherein, t was discu in Jamboo 4 - wed rather, it is directive and the pensation amount, which is m d Court after examining the fa

In Jamboo Bhandari's cas Apex Court in an earlier case Gandhi, (2019) 11 SCC (Cri the object and reason of the am ussed. The observations made in o Bhandari's case (supra) are rep "5. The paragraph `8' of Surinder Singh Deswal A 11 SCC 341 reads thus: - "8. Now so appellants t section 148 appellate co such sum wh or compens word used i vested with mandatory, Advocate fo provisions o concerned, NI Act as a Objects and NI Act, the construed a deposit by th special reas

direction to pay or deposit 20% maximum, is to be passed by acts and circumstances of the c se (supra), the view taken by e, i.e. Surinder Singh Deswal ri) 461', has also been discuss mendment in Section 148 of the A n para Nos. 5 to 12 of the judgm produced herebelow: of the decision of this Court in the lias Colonel S.S. Deswal and Others (20 o far as the submission on behalf of that even considering the language use of NI Act as amended, ourt "may" order the appellant to dep hich shall be a minimum of 20% of the sation awarded by the trial court and is not "shall" and therefore the discretio the first appellate court has construed i which according to the learned Se or the appellants would be contrary to of section 148 of the NI Act as amende considering the amended section 148 of a whole to be read with the Statemen d Reasons of the amending section 148 of word used is "may", it is generally to as a "rule" or "shall" and not to direc the appellate court is an exception for w sons are to be assigned. Therefore amen

% of case l v. sed, Act ment case 019) f the ed in posit fine on is it as enior o the ed is f the nt of f the o be ct to which CRM-M-28543-2025 5 - section 148 appellate co direct the a shall not be either on complainant appellant-ac suspend the construed co section 148 or compens to be deposi within a per within such f be directed shown by section 148 section 148 Act. The Neg from time to disposal of c of cheques. unscrupulou easy filing proceedings dishonoured and resourc value of the has comprom Parliament h NI Act. Ther be in furthe amendment section 138

¶6What is held by th should be made of sectio Appellate Court will be justif provided in Section 148. How satisfied that the condition o such a condition will amoun appellant, exception can be m

of the NI Act confers power upon ourt to pass an order pending appea appellant-accused to deposit the sum w e less than 20% of the fine or compensa an application filed by the orig t or even on the application filed by ccused under section 389 Cr.P.C., 1973 e sentence. The aforesaid is required to onsidering the fact that as per the amen of the NI Act, a minimum of 20% of the ation awarded by the trial court is dire ited and that such amount is to be depos riod of 60 days from the date of the order further period not exceeding 30 days as by the appellate court for sufficient ca the appellant. Therefore, if amen of the NI Act is purposively interprete of the NI Act, but also section 138 of th gotiable Instruments Act has been amen o time so as to provide, inter alia, spe cases relating to the offence of the dishon So as to see that due to delay tactics by us drawers of the dishonoured cheques du of the appeals and obtaining stay in s, an injustice was caused to the payee d cheque, who has to spend considerable ces in the court proceedings to realise cheque and having observed that such d mised the sanctity of the cheque transacti has thought it fit to amend section 148 of refore, such a purposive interpretation wo erance of the Objects and Reasons of in section 148 of the NI Act and of the NI Act. his Court is that a purposive interpreta on 148 of the N.I. Act. Hence, norm ified in imposing the condition of depos wever, in a case where the Appellate Cou of deposit of 20% will be unjust or impo nt to deprivation of the right of appeal of made for the reasons specifically recorde

l to which ation ginal 3 to o be nded fine ected sited r, or may ause nded d in e NI nded eedy nour y the ue to of a time delay ions. f the ould f the also ation ally, it as urt is osing f the

¶9(supra),H which are 6 -

¶7Therefore, when Ap section 389 of the Cr.P.C., 1 for offence under section 13 Appellate Court to consider warrants grant of suspension of deposit of 20% of the fine the Appellate Court comes t case, the reasons for coming

¶8The submission of th complainant is that neither High Court , there was a ple may be made in these cases 20% of the amount be dispe was not made by the appella consider the said plea.

¶9We disagree with t applies under section 389 sentence, he normally app sentence without any cond sought by the appellants, the in exception or not.

¶10In these cases, both t proceeded on the erroneou amount is an absolute rule w

¶11The learned counsel states that the appellants amount. However, this is the

¶12In these circumstances High Court and restore the before the High Court . We d Bench of the High Court on High Court to fix a date fo contesting parties are befor High Court to issue a not High Court , after hearing th amount is already deposited that 20% of the amount is n Revision Petitions in the ligh Till the disposal of the res passed by this Court orderin operate. Again, in case of Hon'blethe Apex Court has noti e required to be looked into in su

ppellate Court considers the prayer un 1973 of an accused who has been convi 38 of the N.I. Act, it is always open for r whether it is an exceptional case w n of sentence without imposing the condi e/compensation amount. As stated earlie to the conclusion that it is an excepti g to the said conclusion must be recorded he learned counsel appearing for the orig r before the Sessions Court nor before ea made by the appellants that an excep and the requirement of deposit or minim ensed with. He submits that if such a pr ants, there were no reasons for the Cour the above submission. When an accu of the Cr.P.C., 1973 for suspension plies for grant of relief of suspension dition. Therefore, when a blanket orde e Court has to consider whether the case f the Sessions Courts and the High Court h us premise that deposit of minimum 2 which does not accommodate any exceptio l appearing for the appellants, at this st have deposited 20% of the compensa e matter to be examined by the High Cour s, we set aside the impugned orders of e revision petitions filed by the appell direct the parties to appear before the ro n 09.10.2023 in the morning to enable or hearing of the revision petitions. As re the Court , it will not be necessary for tice of the date fixed for hearing. he parties, will consider whether 20% of d or not. If the Court comes to the conclu not deposited, the Court will re-examine ht of what we have observed in this judgm stored Revision Petitions, the interim o ng suspension of sentence will continu f Muskan Enterprises's c iced certain additional paramet uch like cases, which reads thus:

nder icted r the which ition er, if onal . ginal ption mum ayer rts to used n of n of er is falls have 20% on. tage, ation rt . f the lants oster e the s the r the The f the usion e the ment. rder ue to case ers, CRM-M-28543-2025 7 - "27. We may take the d our point of view. Th Appellate Court where s opinion, even in course o appropriate quantum of fin that the impugned con recorded/imposed by the erroneous that it is only aside and that ordering burdensome for the appel on a plain reading of the o been recorded and sente mandatory procedural req time lodging of the comp proceedings vitiated, or admissible evidence from evidence which was perm have recorded an order without any assessment/an appreciating the evidence passed an order failing sufficient reasons thereb appellant and the offence, the compensation awarde fails to meet the proportio an order to be in defiance be labelled as perverse illustrative and not exhaus possibility cannot be com travesty of justice if exerc the legislature and could i these pointed out above, not permitted to be exerci interpretation of 'may' be Section 148 and the aggr deposit of minimum 20%

discussion a little forward to empha here could arise a case before uch court is capable of forming of considering as to what would be ne or compensation to be kept in depo nviction and the consequent sente e trial court is so wholly incorrect a matter of time for the same to be g a deposit would be unnecessa llant. Such firm opinion could be form order, such as, the conviction might h ence imposed without adherence to quirements of the N.I. Act prior to/at plaint by the complainant rendering r the trial court might have rejec being led and/or relied on inadmiss mitted to be led, or the trial court m r of conviction which is its ipse d nalysis of the evidence and/or totally m e on record, or the trial court might h to disclose application of mind and by establishing the link between , alleged and found to be proved, or ed is so excessive and outrageous tha onality test : all that, which would evi e of the applicable law and, thus, liabl e. These instances, which are me stive, may not arise too frequently bu mpletely ruled out. It would amount t cise of discretion, which is permitted indeed be called for in situations such or in any other appropriate situation ised by the Appellate Court by a judi eing read as 'shall' in sub-section (1) rieved appellant is compelled to mak of the fine or compensation awarded

asize an osit, ence e set arily med have t the cted sible ight dixit, mis-have d/or that at it ince le to erely ut its to a d by h as n, is icial ) of ke a CRM-M-28543-2025 8 - trial court , notwi Appellate Court might hav as regards invalidity of challenge on any valid gro text matching the context proper not to denude the conferred by the legislatu not ordering deposit altog case which commends to t there can be no gainsay Appellate Court should le made with the quantum of situation in every individu challenge does not bear retention of the power of given case (which in its exceptional) and calling f deposit, has to be conced not to leave any discretio reason as to why the legis 'may' in sub-section (1). whole, reveals that 'may' must be presumed that the the words used which form understanding the words u does not also result in ma the same ought to be avo read 'may' as 'may' and 's Section 148. This is becau

¶28In such view of the m are unhesitatingly of the High Court declining to e Section 482, Cr. PC of However, we do not cons High Court for considera Section 482, Cr. PC;

ithstanding any opinion that ve formed at the stage of ordering dep f the conviction and sentence un ound. Reading 'may' as 'may' leads to t and, therefore, it seems to be just e Appellate Court of a limited discre ure and that is, exercise of the powe gether albeit in a rare, fit and appropr the Appellate Court as exceptional. W ying that normally the discretion of ean towards requiring a deposit to f such deposit depending upon the fac ual case, more so because an order un the mark of invalidity on its forehe f such court not to order any deposit view and for the recorded reason for exercise of the discretion to not or ded. If indeed the legislative intent w on to the Appellate Court , there is l slature did not also use 'shall' instea Since the self-same section, read a has been used twice and 'shall' thric e legislature was well and truly awar m the skin of the language. Reading used by the legislature in the literal se anifest absurdity and hence tinkering w oided at all costs. We would, theref hall' as 'shall', wherever they are use use, the words mean what they say. matter and for the foregoing reasons, e view that the impugned order of entertain the subsequent petition un the appellants is unsustainable in l sider the need to remit the matter to ation of the subsequent petition un instead, in our view, justice would

posit nder o the etion er of riate While f the o be ctual nder ead, in a s is rder were little d of as a ce, it re of ense with fore, ed in , we nder law. nder

¶103861-202 Bhullar T non-speak Bhandari assailed a the said i Apex Cou

11.

24.04.202 Hon'ble A Enterpris the case, (Appellate 9 - sufficiently served if the deposit being required to the law laid down in observations made hereina

¶29Consequently, the im 18th May, 2024 and th October, 2022, stand se Sessions Court to re-exam Whether sufficient ground persuade the Sessions Cou to its discretion and satisfa the plea that the appellan any party seeks to derive a

This Court has already consi 5, titled as, "M/s Devgan Rice Trading Company and another' king order, without noticing t i's case (supra) and Muskan and same has been partly allowe issue again in accordance with urt. After examining the impug 25 (Annexure P-4) and in view o Apex Court in Jamboo Bhan ses's case (supra), without com the present petition is dispo e Court) is directed to re-exam

Sessions Court re-examines the issue be made by the appellants in the ligh Jamboo Bhandari (supra) and above. mpugned order of the High Court da he Sessions Court's order dated 1 t aside. The matter is remitted to mine the issue of ordering depo d has been made out by the appellant urt not to order any deposit is left enti faction. We do not express any opinion ts have sought to advance before us, any advantage. All points are left open idered the similar plea in CRM-e and General Mills v. M/s Jas ' (D.O.D.: 28.01.2025), wherein the directions passed in Jamb Enterprises's case (supra), w d by issuing directions to re-dec the law laid down by the Hon' gned orders dated 17.03.2025 a of the judicial precedents settled ndari's case (supra) and Musk mmenting anything on the merits osed of and learned lower Co mine the case in view of law l

e of ht of ated 17th osit. ts to irely n on lest n. -M-sbir boo was cide 'ble d by kan s of ourt down by Muskan E petitioner decide afr requireme Court.

24.04.202 depositing again in v

that woul already re

08.04.202 decided.

¶13disposed

¶14informatio

May 22, anju

Whether sp Whether Re

10 - the Hon'ble Apex Court in Jam Enterprises's case (supra) and a r to make submissions regardin fresh whether it is an appropriat ent of deposit of 20% of the com The directions given in th 25 (Annexure P-4) by learned g 20% of compensation, is set view of aforementioned observat As far as the bail during the d not be subject to deposit of 20 eferred issue to the larger Bench 25, passed in CRM-M-779-2025 With the aforementioned obs of. Let copy of this order be on and necessary compliance. 2025 peaking/reasoned: Yes/No eportable: Yes/No

mboo Bhandari's case (supra) a after granting an opportunity to ng the exceptional circumstanc te case that warrants waiver of mpensation awarded by learned t he orders dated 17.03.2025 a Appellate Court to the extent aside and to decide the said is ions. e pendency of appeal is concern 0% compensation amount, until h by this Court, vide its order da 5 and CRM-M-8498-2025 is fina servations, present petition stan e sent to the Lower Court, (SANJAY VASHIST JUDGE

ces, trial t of ssue ned, ated ally nds for TH)