Ashok Panchbhai vs State Bank Of India

Goutam Bhaduri, J

Heard.

The present petition is against the order dated 14.12.2018 wherein the appellate Court in an appeal filed against the conviction made under Section

138(a) in The Negotiable Instruments Act, 1881 (hereinafter referred to as the Act, 1881) has directed to deposit 50% of the fine amount apart from

the surety.

Learned counsel for the petitioner submits that the direction to deposit 50% of the fine amount by the appellate Court is too stringent, which may be

reduced as the petitioner cannot deposit the amount and it has taken away his valuable right of Appeal. It is stated that may be reduced to 20% as

statutorily required. He further submits that the amendment in Section 148 in the Negotiable Instruments (Amendment) Act, 2018 would not apply in

the given facts as the case was already pending earlier to the amendment of the Act as the Act came into force much later and further the provisions

of CRPC also provides that the appellate Court may in its discretion pass certain suitable orders in the given facts of a case therefore, direction to

deposit 50% of compensation is wrong. It is stated that in absence of deposit the amount, the appeal is not heard, whereby the right of the petitioner

has been taken away.

Per contra, learned counsel for the respondents oppose the arguments advanced by learned counsel for the petitioner.

Perused the documents. The petitioner was convicted by order dated 28.11.2018 in a complaint case No.102/2010 by the JMFC, Ambikapur and

was sentenced to 6 years simple imprisonment and to pay the compensation of Rs.1,70,000/- and in absence of payment of fine/compensation further

2 months imprisonment was ordered for. The said order was subject of appeal. The appellate court by its order dated 14.12.2018 directed for

deposition of 50% of the compensation amount apart from surety & bail bond for suspension of sentence. The present petition is against the order

directing deposition of 50% of the compensation amount. The arguments advanced by learned counsel for the petitioner cannot be sustained in the

light of the amended provisions of Section 148 of the Negotiable Instruments (Amendment) Act, 2018 which came into being on 22nd of August, 2018.

The amendment being procedural in nature the argument of the petitioner that it will not have a retrospective effect is completely devoid of merits.

Furthermore, the appeal has been filed after the amendment came into force. For the sake of brevity the amended Section 148 of the Negotiable

Instruments (Amendment) Act, 2018 is reproduced hereunder:-

'148. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer against conviction under section

138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent. of the fine or compensation

awarded by the trial Court:

Provided that the amount payable under this sub- section shall be in addition to any interim compensation paid by the appellant under section 143A.

(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.

(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:

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.''.

Reading of Section 148 would show that statutory bar has been created that the appellate Court shall not be entitled to reduce the fine or

compensation amount less than 20%, however, may order for more deposit of that. The Act further says, if the compensation/ or fine amount has

been ordered to be deposited, then as per sub-section 2 of Section 148 it is to be deposited within 60 days from the date of order or within such further

period not exceeding thirty days. In view of this, the order which has been passed by the Court below cannot be said to be without any jurisdiction as

the Court has ordered for deposit of 50% of the compensation/fine amount. It would be incorrect to hold that beyond 20% the amount of fine could not

be ordered. Unless & until the some extra ordinary circumstances are shown no interference can be made in such order.

Accordingly the petition being devoid of any merit is dismissed.