JUDGMENT :

Harpreet Singh Brar, J. (Oral)

1. The present petition has been filed challenging the order dated 20.11.2023 whereby while allowing the application filed under Section 389 Cr.P.C. by the petitioner seeking suspension of sentence, the learned Additional Sessions Judge, Kapurthala ordered him to deposit 5% of the compensation of Rs.3,50,000/- i.e. equal to the amount of cheque, awarded by the learned trial Court.

2. In brief, facts of the case are that respondent No.2 filed a complaint against the petitioner under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the NI Act) on the ground that the petitioner borrowed a sum of Rs.3,50,000/- from him and in order to discharge his legal liability, issued a cheque bearing No.735959 dated 20.02.2019 for an amount of Rs.3,50,000/-. However, on presentation for encashment, the said cheque was dishonoured and returned with remarks 'funds insufficient'. The petitioner was convicted vide judgment dated 19.10.2023 passed by the Sub Divisional Judicial Magistrate, Sultanpur Lodhi and sentenced to undergo rigorous imprisonment for a period of 2 years with a direction to pay compensation equal to the cheque amount as per the provisions of Section 357 (3) Cr.P.C vide order of event date passed on quantum of sentence. Aggrieved against the aforesaid judgment, the petitioner preferred an appeal before the Additional Sessions Judge, Kapurthala and also moved an application seeking suspension of sentence imposed upon him. The learned Additional Sessions Judge, Kapurthala while allowing the said application vide order dated 20.11.2023 directed the petitioner to deposit 5% of the amount of compensation awarded by the learned trial Court. Aggrieved against the said order, petitioner approached this Court by way of instant petition.

3. Learned counsel appearing for the petitioner inter alia contends that the impugned order dated 20.11.2023 is not sustainable, as the learned lower Appellate Court cannot impose any condition while granting bail/ordering suspension of sentence. It is further contended that provisions of Sections 143 and 148-A of the NI Act do not provide that if payment as ordered by the lower Appellate Court is not deposited, the concession of bail shall be liable to be cancelled. In support of his contentions, he relies upon the judgment passed by the Hon'ble Supreme Court in Vivek Sahni and another Vs. Kotak Mahindra Bank Ltd. 2009 (4) RCR Cr. 614.

4. Having heard learned counsel for the petitioner and after perusing the record, this Court finds no force in the arguments advanced by the counsel appearing for the petitioner. Section 148 of the N.I. Act starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal which has been filed against the conviction under Section 138 of the N.I. Act, the lower Appellate Court has the power to direct the appellant-accused to deposit such amount, which shall be a minimum of 20% of the fine or compensation as awarded by the trial Court and the said amount shall be deposited within sixty days from the date of the order, subject to an extension of another 30 days, thus, the maximum period provided for making the deposit is 90 days. Further, the judgment relied upon by the petitioner in Vivek Sahni's case (supra), has already been distinguished by Coordinate Benches of this Court in M/s Ajju Mines and Minerals and another vs. M/s. JSC Ispat Private Limited and another 2021(2) RCR (Criminal) 598; Ram Singh vs. Tek Chand 2020 (2) RCR (Criminal) 448 and the judgment passed in CRM-M-37048-2021 titled as Harwinder Singh Vs. Mohan Lal decided on 10.11.2021.

5. A two Judge Bench of the Hon'ble Supreme Court in Surinder Singh Deswal @ Col. S.S. Deswal vs. Virender Gandhi (2019) 11 SCC 341 while speaking through Justice M.R. Shah has held as under:-

'7. It is the case on behalf of the appellants that as the criminal complaints against the appellants under