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GAUHATI HIGH COURT
Manish Choudhury, J.
Bolin Borgohain - Appellant
Versus
State Of Assam - Respondent
Criminal Pettition No. 87 of 2019
Decided On : 13-05-2020
Section 148 - Negotiable Instruments Act - 1881 - [Section 148] - The court discussed the retrospective or prospective nature of Section 148 of the Negotiable Instruments Act, 1881 and the discretion of the appellate court in directing the appellant to deposit an amount in terms of the provisions of Section 148 of the Act. The court referred to the decision of the Supreme Court in Surinder Singh Deswal (2019) 11 SCC 341 and (2020) 2 SCC 514, which held that the amended Section 148 of the NI Act shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under Section 138 of the NI Act, even in a case where the criminal complaints for the offence under Section 138 of the NI Act were filed prior to the amendment Act No. 20 of 2018. The court also discussed the interpretation of the word 'may' in Section 148 and held that 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.
Fact of the Case:
A complaint case was filed alleging an offence under Section 138 of the Act. The trial court found the accused guilty and sentenced him to imprisonment and compensation. The accused appealed against the judgment and the appellate court directed him to deposit 20% of the compensation amount awarded by the trial court.
Finding of the Court:
The court found that the provision of Section 148 of the Act is retrospective in nature and the appellate court has the discretion to direct the appellant to deposit a minimum of 20% of the fine or compensation awarded by the trial court. The court also held that the appellant failed to provide special reasons for dispensing with the deposit.
Issues: The issues involved retrospective nature of Section 148 of the Act and the discretion of the appellate court in directing the appellant to deposit an amount in terms of the provisions of Section 148 of the Act.
Ratio Decidendi: The court held that the amended Section 148 of the NI Act shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under Section 138 of the NI Act, even in a case where the criminal complaints for the offence under Section 138 of the NI Act were filed prior to the amendment Act No. 20 of 2018. The court also interpreted the word 'may' in Section 148 and held that 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.
Final Decision: The court found no merit in the petition and recalled the interim order, directing the petitioner to comply with the direction of the appellate court made in the order dated 17.12.2018. The court granted liberty to the petitioner to make an application for extension of the time period for the deposit of the amount due to the Covid-19 pandemic.
JUDGMENT
Manish Choudhury, J. - Heard Mr. S. Mitra, learned counsel for the petitioner; Mr. B. B. Gogoi, learned Additional Public Prosecutor for the respondent no. 1, State of Assam and Mr. B. Deka, learned counsel for the respondent no. 2.
2. The petitioner in this criminal petition filed under Section 482, Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code'' and/or ''CrPC'', for short) has challenged the legality and validity of an order dated 17.12.2018 passed by the learned Additional Sessions Judge (F.T.C.), No. 3, Kamrup (M), Guwahati in Criminal Appeal Case no. 191/2018. Two of issues that have arisen for consideration in this case are : firstly, whether Section 148 of the Negotiable Instruments Act, 1881 (hereinafter referred as ''the Act'', for short) which had come in force w.e.f. 01.09.2018 by the Amendment Act 20 of 2018 is retrospective or prospective and secondly, whether an appellate court in an appeal preferred against a judgment and order of conviction and sentence for an offence under Section 138 of the Act is to assign any reason while directing the appellant to deposit an amount in terms of the provisions of Section 148 of the Act.
3. In order to appreciate the issues, a brief narration of the events which had led to passing of the impugned order dated 17.12.2018 appears necessary.
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3.1 A complaint case came to be instituted before the Court of Chief Judicial Magistrate, Kamrup (M), Guwahati by the respondent no. 2-complainant (hereinafter referred to as ''the complainant'', for short) alleging commission of an offence under Section 138 of the Act. The said complaint was registered and numbered as C.R. Case No. 78C/2015. It was projected therein that both the complainant and the accused who is the petitioner here, are businessmen. In the year 2011, the accused approached the complainant for a personal loan of Rs. 9,00,000/-. The complainant paid the amount of Rs. 9,00,000/- in two instalments on 15.06.2011 and 25.10.2011. For the purpose of repayment of the said loan the accused issued 4 (four) nos. of account payee cheques drawn on an account maintained by him with State Bank of India, Beltola Branch. The said 4 (four) nos. of cheques were dated 20.09.2014, 27.09.2014, 25.10.2014 & 25.10.2014 respectively. The complainant presented all the 4 (four) cheques for collection on 04.11.2014 but the cheques were returned unpaid with remarks ''insufficiency of fund'' and ''no seal''. The complainant thereafter, sent a legal notice through his advocate to the accused on 29.11.2014. It was asserted that the notice was duly served on the accused on 01.12.2014 and in response to the said notice, the accused had also sent a reply on 17.12.2014 stating, inter-alia, that he had already paid the amount of Rs. 9,00,000/- to the complainant by cash as well as by cheques.
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3.2. On receipt of the said complaint, the same was registered as C.R. Case no. 78/2015 and forwarded to the Court of Sub-Divisional Judicial Magistrate, II, Kamrup (Metro), Guwahati (''the trial Court'', for short) for disposal. The learned trial court took cognizance of the offence under Section 138 of the Act and issued process against the accused for his appearance. On receipt of summons, the accused entered his appearance. When the particulars of the offence were stated to him, he pleaded not guilty and claimed to be tried.
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3.3. In the course of trial that followed, the complainant examined himself as P.W.-1 and exhibited 7 (seven) nos. of documents in support of his case. Thereafter, the accused was examined under Section 313, CrPC and he desired to adduce evidence. The accused examined as himself as D.W.-1 and exhibited 3 (three) nos. of documents in support of his case.
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3.4. After conclusion of the trial, the learned trial court found the accused guilty of the offence under Section 138 of the Act. By a judgment and order dated 19.11.2018, the trial court convicted the accused under Section 138 of the A
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