Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 49

IN THE HIGH COURT AT CALCUTTA
Shampa Dutt Paul, J.
Mithun Modak - Appellant
Versus
Deepak Kumar Sharma - Respondent
Criminal Revision No. 631 of 2020
Decided On : 31-01-2023

Advocates appeared:
Amarta Ghose, Advocate, Siddhartha Paul, Advocate, Souryadeep Ghosh, Advocate, Mani Shankar Chaudhury, Advocate

The Appellate Court's power to order the appellant to deposit a minimum of 20% of the fine or compensation under Section 148 of the Negotiable Instruments Act, as amended in 2018, is mandatory and not discretionary, and this amended provision is applicable retrospectively.

Headnote:
NEGOTIABLE INSTRUMENTS ACT - SECTION 148 - DEPOSIT OF COMPENSATION - APPELLATE COURT'S DISCRETION - RETROSPECTIVE APPLICABILITY: The Appellate Court's power to order the appellant to deposit a minimum of 20% of the fine or compensation awarded by the trial court under Section 148 of the Negotiable Instruments Act, as amended in 2018, is not discretionary but mandatory. This amended provision is applicable retrospectively, even to cases where the criminal complaints for the offence under Section 138 of the Act were filed prior to the amendment.
Fact of the Case:

The petitioner, convicted under Section 138 of the Negotiable Instruments Act, challenged an order directing him to deposit 20% of the fine/compensation amount as a condition for suspending his sentence during the pendency of his appeal.
Finding of the Court:

The court held that the impugned order was in accordance with law and did not warrant interference in its inherent jurisdiction. The court relied on the Supreme Court's decision in Surinder Singh Deswal & Ors. v. Virender Gandhi & Anr., which held that Section 148 of the Negotiable Instruments Act, as amended, is applicable retrospectively and that the Appellate Court's power to order the appellant to deposit a minimum of 20% of the fine or compensation is mandatory.
Issues: 1. Whether the Appellate Court's power to order the appellant to deposit a minimum of 20% of the fine or compensation under Section 148 of the Negotiable Instruments Act is discretionary or mandatory? 2. Whether the amended Section 148 is applicable retrospectively, even to cases where the criminal complaints for the offence under Section 138 of the Act were filed prior to the amendment?
Ratio Decidendi: 1. The court held that the Appellate Court's power to order the appellant to deposit a minimum of 20% of the fine or compensation under Section 148 of the Negotiable Instruments Act is mandatory and not discretionary. 2. The court held that the amended Section 148 is applicable retrospectively, even to cases where the criminal complaints for the offence under Section 138 of the Act were filed prior to the amendment.
Final Decision: The court dismissed the petitioner's revision petition, upholding the impugned order directing him to deposit 20% of the fine/compensation amount as a condition for suspending his sentence during the pendency of his appeal.

JUDGMENT

Shampa Dutt (Paul), J. - The present revisional application has been referred praying for setting aside or modification of an order dated 24th December, 2019 passed by the Learned Additional District & Sessions Judge, Raghunathpur, Purulia in Criminal Appeal No. 09 of 2019 preferred by the accused/petitioner on being convicted by the learned Magistrate in Complaint Case No. 04 of 2013 under Section 138 of the Negotiable Instruments Act.

2. The petitioner's case is that on basis of a false complaint with completely forged documents the petitioner has been implicated as an accused in a case of dishonor of cheque amounting Rs. 3,30,000/-(Three lakhs and thirty thousand only) by the opposite party.

3. The petitioner pleaded not guilty to the commission of the alleged offence and faced the trial. But due to lack of proper legal guidance the petitioner was unable to defend himself in the aforesaid trial which was presided over by the Learned Additional Chief Judicial Magistrate, 2nd Court, Raghunathpur, Purulia. As a result the petitioner was convicted for the commission of offence punishable under Section 138 of the Negotiable Instruments Act and the petitioner was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 5,00,000/- in default to further undergo simple imprisonment of one year.

4. The petitioner has been constrained to prefer an appeal against the order of conviction and sentence. The said appeal is pending before the court of the Learned Additional District & Sessions Judge, Raghunathpur, Purulia as Criminal Appeal No. 09 of 2019.

5. The opposite party filed a petition dated 25.09.2019 before the court of the Learned Additional District and Sessions Judge, Raghunathpur, Purulia praying for pass necessary direction upon the appellant to deposit 30% of the fine amount or compensation amount as awarded by the Learned Trial Court.

6. By an order dated 24.12.2019 the Learned Judge allowed the aforesaid petition dated 25.09.2019 filed by the opposite party, on contest by directing the petitioner to deposit 20% of the fine amount or the compensation amount as awarded by the Learned Trial Court by 19.02.2020 positively.

7. That due to financial constraints your petitioner has been unable to accumulate and deposit 20% of the fine/compensation amount within such a short span of time.

8. The petitioner believes that there is every chance of success in the appeal preferred by the petitioner before the Learned Court below on the basis of proper appreciation of the evidence, which has otherwise been overlooked by the Learned Trial Court while arriving at a conclusion of guilt against the petitioner.

9. The order dated 24.12.2019 passed by the Learned Additional District & Sessions Judge, Raghunathpur, Purulia is too harsh and against the principle of natural justice.

10. Mr. Amarta Ghose, Learned Advocate for the petitioner has submitted that the Learned Judge has failed to appreciate that there is every chance of success in the appeal preferred by the petitioner before the Learned Trial Court that on the basis of proper appreciation of the evidence, which has otherwise been overlooked by the Learned Trial Court while arriving at a conclusion of guilt against the petitioner.

11. The order dated 24.12.2019 passed by the Learned Additional District and Sessions Judge, Raghunathpur, Purulia is too harsh and against the principles of natural justice.

12. The Learned Judge has failed to appreciate that the Learned Trial court has erroneously overlooked the specific defence case as adduced by the petitioner while coming to a finding of guilt against the petitioner.

13. The Learned Trial Court has come to an order of conviction against the petitioner on the basis of vague surmises and conjectures.

14. The Learned Appellate Court has failed to appreciate that directing the petitioner to pay 20% of the fine /compensation amount and that too within a short period of time is not only harsh, the same has also pu