JUDGMENT

Ashok Kumar Verma, J. (Oral)

The petitioners have filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') for quashing of impugned order dated 25.11.2022 (Annexures P-6) passed by learned Additional Sessions Judge, Chandigarh, in Criminal Appeal No.317/2022 titled as 'M/s Umam Automobiles and another v. M/s Indo Farm Equipment Ltd.' whereby while suspending the sentence of the petitioner No.2, he was directed to deposit 20% of the compensation amount awarded by the trial Court within a period of 60 days.

2. Brief facts of the case are that petitioner No.1 is a partnership firm having petitioner No.2 as its partner. In order to discharge their legal liability, petitioner No.2 issued a cheque bearing No.899854 dated 01.11.2009 amounting to Rs.1,40,00,000/- in favour of the respondent and when the said cheque was presented by the respondent, the same were dishonoured with remarks 'payment stopped by the drawer' vide memo dated 04.12.2009. Thereafter, the respondent issued a legal notice dated 30.12.2009 to the petitioners but despite that the petitioners have failed to make the payment. Hence, respondent filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') against the petitioners.

3. Vide judgment of conviction and order of sentence dated 28.10.2022, petitioner No.2 was held guilty for commission of offence punishable under section 138 of the N.I. Act and sentenced to undergo rigorous imprisonment for a period of 02 year and to pay a compensation of Rs.1,40,00,000/- to the respondent/complainant in terms of Section 357(3) of the Cr.P.C. within 02 months and in default of payment of compensation to further undergo simple imprisonment for 02 months.

4. Being aggrieved against the aforesaid judgment of conviction and order of sentence, the petitioners have preferred an appeal along with the application under Section 389 Cr.P.C. for suspension of sentence during the pendency of the appeal. The application under Section 389 of the Cr.P.C. filed by the petitioners was allowed vide impugned order dated 25.11.2022 passed by learned Additional Sessions Judge, Faridabad and petitioner No.2 was directed to deposit 20% of total compensation amount awarded by the trial Court within 60 days.

5. Aggrieved by the said order, the petitioner has filed the present petition.

6. Learned counsel for the petitioners has submitted that the impugned order dated 25.11.2022 is illegal. The petitioners have been falsely implicated in the present case. There is no legally enforceable debt against the petitioners and cheque in question was issued as security which has handed over to the employee of the respondent-company as a condition for grant of distributorship. A perusal of provision 148 of the N.I. Act clearly shows that learned Appellate Court may order the appellant to deposit such amount which shall not be less then 20% of the fine or compensation. The words used is 'may' which means that in the facts and circumstances of the case, when the appellant has good prima facie case on merit the learned Appellate Court should not direct for the payment of 20% of the amount of fine or compensation. Petitioner No.2 will suffer irreparable loss if the impugned order is not set aside. Therefore, the impugned order may be set aside.

7. I have heard learned counsel for the petitioner and perused the paper-book.

8. For ready reference, Section 148 and 143-A of the N.I. Act are reproduced here-in-below:-

"148. Power of Appellate Court to order payment pending appeal against conviction.-

(1) Notwithstanding anything contained in the Code of Criminal Procedu