The appellate court has discretion under Section 148 of the Negotiable Instruments Act to direct the release of a deposited amount to the complainant pending appeal, subject to conditions.

JUDGMENT :

Mr. Mahendar Kumar Goyal, J. - This criminal miscellaneous petition under Section 482 CrPC has been filed assailing the legality and validity of the order dated 02.11.2022 passed by the learned Additional Sessions Judge No.2, Bundi (for brevity "the learned appellate Court") in Appeal No.207/2022 whereby, while staying the operation of the sentence dated 28.09.2022 passed by the learned Judicial Magistrate No.2, Bundi (hereinafter referred to as "the learned trial Court") in Regular Criminal Case No.279/2016, CIS No.327/2016, CNR No.RJBD020005352016 convicting the accused-petitioner (for short "the petitioner") under Section 138 of the Negotiable Instruments Act, 1881 (for brevity "the Act of 1881"), he has been directed to deposit a sum of Rs. 10,000/- with a further stipulation for its disbursement to the respondent/complainant (hereinafter referred to as "the complainant") on furnishing of an undertaking to refund the amount alongwith interest @ 9% per annum in case the petitioner succeeds in the appeal.

2. The only contention advanced by the learned counsel for the petitioner is that although, he is ready to deposit the amount as directed by the learned appellate Court; but, it should not be paid to the complainant as he may suffer hardship to recover it back in case his appeal succeeds. He, therefore, prays that the criminal miscellaneous petition be allowed and the order dated 02.11.2022 be quashed and set aside to the extent that it directs releasing the payment in favour of the complainant.

3. Heard. Considered.

4. Section 148 of the Act of 1881 reads as under:-

"148. Power of Appellate Court to order payment pending appeal against conviction.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent. of the fine or compensation awarded by the trial Court:

Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143A.

(2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant.

(3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:

Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.]"

5. Thus, in view of the aforesaid provision, the learned appellate Court has discretion to order release of the payment so deposited by the appellant in favour of the complainant in an appeal arising out of conviction under Section 138 of the Act of 1881.

6. A perusal of the order dated 02.11.2022 reveals that the learned appellate Court has directed release of the amount to be deposited by the petitioner in favour of the complainant subject to his furnishing an undertaking with stipulation to refund the amount with interest @ 9% per annum in case the appeal succeeds. The order is in consonance with the statutory scheme. This Court finds no reason to interfere in the order passed by the learned appellate Court in exercise of its judicious discretion.

7. Resultantly, this criminal miscellaneous petition is dismissed being devoid of merit.