IMPORTANT POINTS
The appeal is filed two years prior to incorporation of Section 148 into the N.I. Act. Since the appeal was admitted and an order suspending the execution of the sentence was passed after 2 years of incorporation of Section 148 into the N.I. Act and Rs.75,000/-as directed by the Court was deposited as a condition precedent for suspending execution of sentence in the appeal, the trial court is highly unjustified in re-opening the prosecution which was almost concluded and posted for judgment for the purpose of consideration of Crl.M.P No.721/2019 and to pass the impugned order.

ORDER :

An order passed by the Court of Sessions, Kollam (for short 'the appellate court') in Crl.M.P. No.721/2019 on 13.06.2019 is under challenge in the petition on hand. The accused who has been convicted by Judicial First Class Magistrate Court (Temporary), Kadakkal in ST No.422/2015 for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') had preferred Crl.Appeal No.156/2016 before the appellate court and Crl.M.P. No.3117/2016 was filed by him under Section 389(1) Cr.P.C seeking to suspend the execution of sentence. That application was filed in the year 2016 itself and an order was passed by the appellate court on 15.11.2016, the copy of which is appended to the petition on hand as Annexure A1, which reads :

“Heard. The sentence imposed by the trial court hereby stands suspended on the following conditions:

1. On depositing Rs.75,000/-(Rupees Seventy Five Thousand only) being a portion of the compensation awarded by the lower court within 30 days from today.

2. On executing a bond for Rs.25,000/-(Rupees twenty five thousand only) with two solvent sureties for the like amount to the satisfaction of the lower court.”

2. The accused has complied with the conditions imposed as above and got the execution of the sentence imposed by the trial court on him, suspended. During the pendency of the appeal, the complainant has filed Crl.M.P. No.721/2019 in Crl.Appeal No.156/2016 under Section 148 N.I. Act seeking for an order directing the appellant/accused to deposit such sum of compensation awarded by the trial court, and to direct the release of the amount so deposited, to him. The application was allowed by the appellate court by order passed on 13.06.2019, the copy of which is appended to this petition as Annexure A2, the relevant part of which is extracted hereunder :

“In the result, the appeal is allowed as follows :

1. The appellant/accused is directed to deposit 20% of the said compensation amount awarded as per the impugned judgment before the Court below within 30 days from this day.

2. The appellant/accused is directed to file a memo before this Court on or before 15.07.2019 after making the said deposit.

3. The court below shall release the said amount, if it is deposited, to the complainant/petitioner/respondent as per rules, subject to proviso to Sub.sec.(3) of Sec.148 of the N.I. Act.”

3. Aggrieved appellant/accused is now before this Court challenging the order and seeking to quash the same.

4. The contention of Sri.S.Sreekumar, the learned Senior Counsel on behalf of the appellant was that Section 148 was brought into N.I. Act, by Amendment Act 20 of 2018 and was effective only from 01.09.2018 and cannot have application in an appeal filed on 15.11.2016, wherein the sentence under challenge was suspended forthwith. According to the learned counsel, the appellant/accused having been complied with the conditions imposed by the appellate court, it is illegal and unjust for the court to impose further obligations on him. According to him, as per direction in the order suspending the sentence, the appellant/accused has deposited Rs.75,000/-towards compensation payable as per judgment of the trial court.

5. According to the learned counsel, the amendment brought into N.I Act being effective only from 01.09.2018, cannot have retrospective operation to Crl.Appeals filed prior to that date and the petitioner who had deposited a part of the compensation to get the sentence imposed against him suspended in the year 2016 ought not to have been burdened with a further liability to deposit 20% of the compensation again.

6. In view of the patent illegality involved in the order, notice to respondent is dispensed with.

7. Section 148 N.I Act is extracted hereunder for easy reference;

“148. Power to Appellate Court to order payment pending appeal against conviction.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer against conviction