The appellate court has the authority to impose conditions, including the deposit of compensation, during the suspension of the sentence, and the amended Section 148 of the NI Act empowers the appellate court to direct deposit of a minimum of 20% of the fine or compensation awarded by the trial court.

JUDGMENT

Vivek Singh Thakur, J. - Lalit Kaushal, petitioner No.1 herein, is a convict in Criminal Complaint No. 9/3 of 2013, titled Yadvinder Kaushal vs. Ravinder Nath Tagore Memorial ITC and another, filed under Section 138 of Negotiable Instruments Act, 1881, (hereinafter in short 'NI Act'), wherein, vide judgment dated 30.5.2015, he has been convicted by learned Judicial Magistrate 1st Class, Kasauli and sentenced to undergo simple imprisonment till rising of Court under Section 138 of NI Act and to pay a sum of Rs.12 lacs

(double of cheque amount), as compensation to complainant within a period of 30 days from the date of passing of order and in default of payment of compensation, convict will have to undergo simple imprisonment for one year.

2. Order dated 30.6.2015, impugned herein, has been passed by the Appellate Court i.e. learned Sessions Judge, Solan wherein under Section 389 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC') sentence, imposed upon the petitioner, has been suspended, during pendency of appeal, subject to furnishing personal bond in the sum of Rs.20,000/- with one surety in the like amount within one month and also subject to deposit of 50% of compensation amount within four months from the date of order.

3. Petitioners are aggrieved from imposition of condition of deposit of 50% of amount of compensation on the ground that impugned order is without jurisdiction and against the provisions of Cr.PC.

4. It is canvassed on behalf of petitioner that provisions of Cr.P.C. do not warrant or empower the Appellate Court to direct deposit of the compensation amount or part thereof at the time of suspending the sentence under Section 389 Cr.P.C. and that since compensation does not form part of fine imposed by Magistrate, therefore, convict cannot be called upon to deposit the same at the time of suspending the substantive part of sentence as for recovery of compensation amount complainant has to resort to independent proceedings. Further that the Appellate Court under Section 389 Cr.P.C. is not empowered to impose such terms and conditions, like present one, so as to frustrate the right of appeal available to petitioner under statute. It is contended that "fine" and "compensation" are two different terms having distinct meaning and effects. Though compensation amount can be directed to be recovered as fine but fine stands at a higher footing than the compensation awarded by the Court and compensation, so imposed, under Section 357 (3) Cr.P.C., can only be recovered but at the time of staying the substantive part of sentence, the same cannot be ordered to be deposited as the same does not form part of fine and under Section 389(1) of Cr.P.C. the Appellate Court can only call for deposit of fine which is mandatory but not compensation and, therefore, direction to accused to deposit the compensation, at the time of exercising power under Section 389(1) of Cr.P.C., is in excess of jurisdiction.

5. Complaint in the present case was filed on 5.1.2013, which was decided on 30.5.2015 convicting and sentencing the petitioner detailed supra. Petitioner has preferred appeal on 19.6.2015 wherein impugned order dated 30.6.2015 has been passed by the Appellate Court with direction to deposit 50% of compensation amount within four months.

6. Earlier there was no specific provision under NI Act, providing the Appellate Court to pass an order to deposit a sum of fine/compensation in an appeal preferred by the drawer against his conviction under Section 138 of NI Act. Now w.e.f. 1.9.2018, by way of amendment No. 20 of 2018, Section 148 has been inserted in NI Act empowering the Appellate Court to direct deposit of such amount which shall be a minimum of 20% of fine or compensation awarded by the trial Court. Undisputedly, at the time of passing of impugned order, Section 148 of NI Act was not in existence and the impugned order was passed prior to amendment dated 1.9.2018, whereby Section 148 of NI Act was