The right of appeal of a convict should not be thwarted by technical embargoes, and inherent powers can be exercised to do substantial justice.

JUDGMENT

Jay Sengupta, J. - This is a revisional application challenging an order dated 08.09.2015 passed by the Learned Sessions Judge, Purba Medinipur in Criminal Appeal No. 12270 of 2015, re-numbered as Criminal Appeal No. 01 of 2015, thereby directing the appellant to pay 50% of compensation amount for hearing of the application under Section 5 of the Limitation Act filed in connection with the appeal.

2. From the affidavit of service filed on behalf of the petitioner, it appears that notice was duly given to the complainant/opposite party. Despite service of notice, no one appeared on behalf of the complainant/opposite party.

3. On 12.11.2014 the Learned Judicial Magistrate, 2nd Court, Tamluk, Purba Medinipur convicted the present petitioner on a charge under Section 138 of the Negotiable Instruments Act for the dishonour of two cheques, one amounting to Rs. 20,000/- and the other amounting to Rs. 29,900/-, and sentenced him to suffer simple imprisonment till the rising of the Court and to pay Rs. 90,000/- as compensation to the complainant.

4. Being aggrieved by the judgment and order of conviction and sentence passed by the Learned Trial Court, the petitioner preferred an appeal being Criminal Appeal No. 12270 of 2015 along with an application for condonation of delay. On 08.09.2015 the Learned Appellate Court directed payment of 50% of the compensation amount for hearing of the appeal and the application. Being aggrieved by the excessive amount directed to be paid as a pre-condition for hearing of the appeal, the petitioner preferred the present revision.

5. It appears that initially an interim order of stay was once granted in this revision. But, the same was not extended.

6. A certified copy of the order number 47 dated 25.11.2020 passed by the Learned Appellate Court as filed by the petitioner was earlier taken on record. It appears from the said order that on 25.11.2020 the Learned Appellate Court dismissed the application for condonation of delay and consequently, the appeal presented by the petitioner because the stay granted by the High Court had expired long ago and as such, there was no bar on the appellate Court to proceed with the matter and the petitioner had not deposited the sum as directed.

7. Learned Counsel appearing on behalf of the petitioners submits as follows. The petitioner has been suffering from financial stringency. As such, he was not a position to pay 50% of the compensation amount as a precondition for hearing of the application and the appeal. However, the appellant has good grounds for challenging the judgment and order of conviction and sentence passed against him. The appellant has also made out a good case for condonation of delay in his application under Section 5 of the Limitation Act. The appellant's right to prefer an appeal should not get frustrated merely because of his inability to pay 50% of the compensation amount awarded, that too during the Covid-19 pandemic. A further opportunity ought to have been given by the Learned Appellate Court for the petitioner to pay a lesser percentage of the compensation amount. The order directing the appellant to pay was not a final order and as such, could have been modified by the Learned Appellate Court.

8. I have heard the submissions of the learned counsel appearing on behalf of the petitioner and have perused the revision petition and the subsequent order dated 25.11.2020 passed by the Learned Appellate Court.

9. It is germane to mention that Section 148 of the Negotiable Instruments Act, which was introduced by way of an amendment, has retrospective operation. On this, reliance may be placed on the decision of the Hon'ble Apex Court in G.J. Raja vs Tejraj Surana, 2019 19 SCC 409 .

10. Section 148 of the Negotiable Instruments Act provides as follows:

" S. 148. Power of Appellate Court to order payment pending appeal against conviction.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appe