IMPORTANT POINT
Dishonour of cheque – Suspension of sentence – Imposition of condition by first appellate court to deposit 20% of compensation amount awarded is valid.

JUDGMENT (ORAL)

Rule. Respondents waives service. Considering the issue involved in the matter, the present revision application is taken up for hearing, with the consent of learned Advocates appearing for the respective parties.

In the morning session, after arguing the matter at length, the learned advocate for the petitioner sought permission to have the sense of the petitioner to enable him to deposit a reasonable amount against the amount awarded by the learned first appellate court, which comes to 20% of the cheque amount. Therefore, at the request of the learned advocate for the petitioner, the matter has been kept in the second session.

2. Though the learned advocate for the petitioner has submitted to permit the petitioner to deposit 15% of the cheque amount, subject to condition alongwith the accommodation for longer period to enable him to deposit the amount. However, the said request came to be objected by the respondent stating and contending that more than sufficient time has already been elapsed as appeal in question could not have been decided within the stipulated time, as it has crossed the period of 60 days, and therefore, also the readiness and willingness expressed by the petitioner lacks prudent. Learned advocate for the respondent has further submitted that the order in question has been passed on 17.08.2024 by the learned 8th Additional Sessions Judge, Rajkot, in criminal appeal No.491 of 2024, and the present revision application has been moved on 05.09.2024, hence, more than sufficient time has been consumed, which otherwise deprived the respondent to have the test of the fruits of the said order passed in his favour.

3. Thus, sum and substance and the core issue as emerges from the case on hand is, whether the imposition of the condition by the learned first appellate court to deposit 20% of the compensation amount awarded by the trial court is sustainable or not?

4. Having heard the learned advocates for the parties, it appears that the learned first appellate court, while considering the request of the petitioner, who being aggrieved and dissatisfied with the order passed by the learned Additional Chief Judicial Magistrate, Court No.9, Rajkot, in Criminal Case No.12772 of 2020, awarding a punishment has challenged the said order and also sought to keep the execution and operation of the order of sentence in abeyance, simultaneously moved an application under Section 389(3) of the Code of Criminal Procedure (Section 430 of the Bhartiya Nagarik Suraksha Sanhita, 2023), and the said application came to be allowed. However, subsequently, the learned first appellate court has directed the petitioner to deposit 20% of compensation amount. Hence, the present revision application.

5. Learned advocate for the petitioner, while arguing the matter, placed reliance on the decision of the Hon’ble Apex Court in the case of Jamboo Bhandari v. Madhya Pradesh State Industrial Development Corporation Ltd. and Ors, and submitted that since the word “may” has been used, and therefore, the same cannot be construed as mandatory.

6. However, the learned advocate for respondent No.2 has placed reliance on Judgment of the Hon’ble Apex Court, in the case of Muskan Enterprises & Anr. v. The State of Punjab & Anr., reported in 2024 INSC 1046 and has submitted that the very decision of Jamboo (Supra) has been referred to therein, and while making it clear that the legislature intended not to leave any discretion to the first appellate court, there is little-bit sense taken as to the legislature didn’t use the word “shall” instead of word “may” in sub-section(1) of Section 148 of the NI Act. Thus, while considering the facts of the matter in question wherein the discretion have been rested with the learned first appellate court to exercise the same on the basis of the material placed for consideration.

7. Now, Reverting back to the facts of the case on hand, the argument advanced by the learned advocate for the petitioner is th