The appellate court's power to order payment pending appeal under Section 148 of the NI Act can only be invoked when there is a conviction. Once the conviction is set aside, the provision cannot be subsequently invoked, and the earlier deposited amount should be returned when the matter is remanded back to the trial court.

JUDGMENT :

1. By way of present application, applicants have requested to quash and set aside condition no. IV imposed by the learned Additional Sessions Judge, Court No. 10, City Sessions Court, Ahmedabad in Criminal Appeal No. 159 of 2021 vide order dated 16th July 2022, whereby the applicants are directed to deposit 20% of the cheque amount in addition to the 20% already deposited earlier deposited by the appellants as per the order dated 09.09.2021 passed by learned Sessions Court.

2. Brief facts of the present case are as under:

2.1 That the Resp. no.2 - complainant is the proprietor of Nirupama Enterprise and is doing business of waste firewood, colour chemicals and clothes. Applicant No.1 is doing its business of textiles processing i.e. colour work of clothes and other processes on clothes. That, applicants No.2 to 4 are the Directors of applicant No.1. That, the applicants purchased the goods i.e. waste firewood, colour chemicals and clothes from the complainant. That the said goods were supplied by the complainant on a credit basis and in lieu of that a cheque of Rs.8,32,662/- bearing No.648474, dtd.19.08.2016 drawn on Central Bank of India was given by the applicants to the complainant. When the said cheque was presented by the complainant to his bank, it was returned with the endorsement “funds insufficient’. Thereafter a notice dtd. 12.09.2016 was issued to the applicants, which returned with the endorsement “unclaimed” and/or “refused’ Thereafter, the complainant filed the complaint before the trial court. The Hon’ble trial court, vide order dated 05.08 2021, was pleased to convict the applicants and awarded a fine of Rs.5,000/-upon applicant no.1 herein and applicants no.2 to 4 were awarded a sentence of one year simple imprisonment. Further, applicants no.2 to 4 were also directed to pay compensation equivalent to the cheque amount as per section 357 of CrPC and in default to under 2 months simple imprisonment.

2.2 Being aggrieved by the said judgment and order, the applicants preferred an appeal under section 374 of Code of Criminal Procedure, 1973 before the Hon'ble City Sessions Court, Ahmedabad, being Criminal Appeal No. 159/2021. The applicants also preferred an application at Exh.4 under section 389 of the Code of Criminal Procedure, 1973 to suspend the sentence imposed by the learned trial court pending the said appeal. The said application for suspension of the sentence came to be allowed by the learned appellate court vide order dated 09.09.2021 upon imposing certain terms and conditions. That, while suspending the sentence pending the said appeal, the learned appellate court was pleased to release the applicant nos.2 to 4 on bail on a condition of depositing 20% of the cheque amount within 30 days. The said condition came to be imposed by exercising the powers of the appellate court by invoking section 148 of the Negotiable Instruments Act. The applicants deposited the said amount before the learned appellate court and presently also the same is lying with the learned appellate court. Thereafter, the appeal proceeded and the learned appellate court, vide order and judgment dated 16.07.2022, was pleased to allow the said appeal by quashing and setting aside the order and judgment of conviction passed by the learned trial court and further the learned appellate court was pleased to remand back the said case and also permitted the appellants to cross-examine the complainant and to lead evidence on certain terms and conditions. That, the learned appellate court also imposed a stringent condition no. IV directing the applicants to deposit further 20% of the cheque amount before the learned appellate court within a period of 15 days from the passing of the order. Hence, by way of present application, applicants have challenged the said judgment and order.

3. Heard learned advocates for the respective parties.

4. It was submitted by learned advocate for the applicants that the condition no. IV imposed by the learn