Nawal Kishore Khurana And Another vs Sunny Thukral

Harpreet Singh Brar, J

Thiis is the second petition filed under Section 528 BNSS for setting aside of order dated 19.02.2025 (Annexuure P-2) passed by the Court of learned Additionnal Sessions Judge, Amritsar in an appeal CRA No.52 of 2025 titled as ‘Nawal Kishor Khurana and another vs. Sunny Thukral’ filed against the judgment dated 31.01.2025 passed by learneed Judicial Magistrate Ist Class, Amritsar in NACT-6785 of 2018, whereby, the sentence of the petitioner was suspended conditionally by imposing a condition to deposit 20% of the cheque amount as comppensation within 60 days. The fiirst petition was withdrawn on 28.03.2025 with liberty to file a fresh petition with better particulars.

Thee present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referredd as N.I. Act) has been initiated by the complainnant with the submissions that the petitioners are his relatives and were on visiting terms with him. Due to which, they availed a friendly loan of Rs.2,40,000/- from him. In order to dischharge their legal liability, they issued a cheque bearing No.296566 dated 14.111.2018 for Rs.2,40,000/- drawn on State Bank of India, Branch Lohgarh Gatte, Amritsar in favour of the complainant. When the complainant presentted the said cheque for its encashment, thee same was dishonoured with remarks “Funds Insufficient”. Thereafter, the complainant got issued legal notice dated 20.11.2018 to the petitioners/accused, but they failed to pay the afforementioned amount. Hence, this complaint.

Vidde judgment and order dated 31.01.2025 passed by learned Judicial Magistrate Ist Class, Amritsar, the petitioners were convicted and sentenced to unndergo simple imprisonment for a period of 01 year each for commission of offence punishable under Section 138 of Negotiable Instruments Actt and were further directed to pay compensation jointly to the tune of cheque amount i.e. Rs.2,40,000/- to the complainant under Section 357(3) Cr.P.C., in default of payment of fine, they were further directed to undergo simple imprisonment for 01 month eacch and it was also directed that fine, if any alreeady paid to the complainant, be set off from the amount of compensation. Thereafter, the petitioners preferrred an appeal against the said judgment of conviction and order of sentence before the learned Additional Sessions Judge,, Amritsar. The learned Appeellate Court vide order dated 19.02.2025, susspended the sentence of the petitioners subject to depositing 20% of the compensation amount within 60 days of passing of the order.

Leaarned counsel for the petitionerrs inter alia contends that the learned lower Appellate Court failed to appreciate the facts in the right perspective and imposed the condition to depoosit 20% of the compensation and such a condition down by the Hoon’ble Supreme Court in Criminal Appeal Nos.2741 of 2023 (@ SLP(Crl.) Nos. 4927 of 2023 Jamboo Bhanndari vs. M.P. State Industrial Development Corporation Ltd. and others, deccided on 04.09.2023. Speaking through Justice Abhay S. Oka, it has been held as follows:-

“6. What is held by this Court is that a purposive interpretation should be maade of Section 148 of the N.I. Act. Hence, normally, Appelllate Court will be justified in imposing the condition of deposit as provided in Section

However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a conditionn will amount to deprivation of the right of appeal of the apppellant, exception can be made for the reasons specifically recorded.

Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an petitioner who has been convicted for offence under Section 138 of the N.I. Act, it is always oppen 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 200% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said 4 conclusion must be recorded.”

Havving heard learned counsel for the petitioners and after perusing the juudgment passed in Jamboo Bhandari (supra), the lower Appellate Court was required to consider whethher the present case falls in the exception or not. The impugned order dateed 19.02.2025, whereby, the condition of depositing 20% of compensation amount has been imposed for granting suspension of sentence upon the petitiioners is hereby set aside. The learned lower Appellate Court is directed to re-examine the case after granting an opportunity to the petitioners to makee submissions regarding the exceptional circcumstances and decide whether it is an appropriate case that warrants waiverr of the requirement of deposit of 20% of the compensation awarded by learned trial Court.

Thee matter is remanded back to the learned lower Appellate Court with a direction to decide the matter afresh in accordance with law in the light of judgment passed by the Hon'blee Supreme Court in Jamboo Bhandari's casee (supra).

Thee petition is disposed of accordinngly.