IMPORTANT POINT
The appellate court has discretion under Section 148 of the NI Act to impose a deposit condition, which is not mandatory and must be justified based on case specifics.

ORDER :

1. Rule. Learned A.P.P. Ms. Krina Calla and learned advocate Mr. Yogeshkumar A. Ratanpara, waive service of notice of rule on behalf of respective parties. Rule is fixed forthwith.

2. By way of the above Revision Applications, the applicant-revisionists have challenged the orders dated 15.05.2024 passed below Exhibit-5 in Criminal Appeal Nos. 5 of 2024 and 4 of 2024 by the learned 2nd Additional District and Sessions Judge, Visavadar and further prayer was made to modify the condition no. 1 imposed in Exh.5 application in both the matters.

3. Mr. Ashish M. Dagli, learned advocate for the applicant, referring to the judgment of Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd. and Others, (2023) 10 SCC 446, submitted that the learned Judge was required to consider the facts of the matter prior to passing any order against the applicants-accused to deposit 20% of the compensation amount.

3.1 Advocate Mr. Dagli submitted that in view of proposition laid in the referred judgment, such an order would even frustrate the order of suspension of sentence and bail granted. The inability to deposit the amount would lend the applicants-appellants in jail. More so, when the applicants as an appellants have urged about the disputed facts, where the cheques were urged to have been lost and the signatures thereupon were 8 years old. The application was moved often for an expert opinion for F.S.L.

3.2 Advocate Mr. Dagli submitted that there was no legal dues payable and the Bank Account was closed and case was urged of misuse of the cheque.

4. Countering the arguments, learned Advocate Mr. Yogeshkumar A. Ratanpara for the respondent no. 2 submitted that the facts of the case have already been agitated before the trial Court, and it was only after recording of evidence and appreciation, the judgment followed, and therefore the same issue cannot be agitated before the appellate Court for any special concession in the matter.

5. Heard learned Advocates appearing for the respective parties and perused the records of the case. In the case of Jamboo Bhandari (supra), the case of Surinder Singh Deswal Alias Colonel S.S. Deswal and Others v. Virender Gandhi and Another, (2019) 11 SCC 341 was taken into consideration, wherein observations were referred to. Paragraph-8 of the decision in the case of Surinder Singh Deswal (supra) reads as under:

“8. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the NI Act as amended, the appellate court “may” order the appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial court and the word used is not “shall” and therefore the discretion is vested with the first appellate court has construed it as mandatory, which according to the learned Senior Advocate for the appellants would be contrary to the provisions of Section 148 of the NI Act as amended is concerned, considering the amended Section 148 of the NI Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the NI Act, the word used is “may” it is generally to be construed as a “rule” or “shall” and not to direct to deposit by the appellate court is an exception for which special reasons are to be assigned.

Therefore amended Section 148 of the NI Act confers power upon the appellate court to pass an order pending appeal to direct the appellant-accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application file by the appellant-accused under Section 389 CrPC to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the NI Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date o