Court ruled that the complainant must be given notice and that the accused must deposit a minimum of 20% of the fine pending appeal under Section 148 of the Negotiable Instruments Act.

JUDGMENT

Petitioner original complainant of a cheque bouncing case has challenged an order dated 23.02.2021 passed by the learned Sessions Judge, North Tripura, Dharmanagar on an application filed by the petitioner in an appeal filed by the respondent No.1 the original accused.

2. Brief facts are as under:

The case of the petitioner is that the respondent No.1 had borrowed certain sums of money from the petitioner from time to time and in discharge of the debt, the respondent No.1 had issued a cheque dated 30.07.2015 for a sum of Rs.7,57,640/-. This cheque being presented for realization was returned on the ground that the balance in the account was insufficient. The petitioner thereupon filed a complaint against the respondent No.1 under Section 138 of the Negotiable Instruments Act. The concerned Magistrate conducted a trial during which the respondent No.1 disputed his guilt, however, did not dispute his signature on the cheque. The learned Magistrate decided the criminal case by a judgment dated 12.02.2020 by which the respondent No.1 original accused was convicted for offence punishable under Section 138 of the Negotiable Instruments Act. He imposed a sentence of simple imprisonment of one year and ordered the accused to pay fine of Rs.10,00,000/- out of which Rs.8,00,000/- would be paid to the complainant towards the cheque amount with interest.

3. The accused challenged the said judgment of the Magistrate before the Sessions Court. This appeal was admitted on 27.02.2020. On the same date the Sessions Court also passed an order suspending the sentence without imposing any condition on the accused. Significantly, this order was passed without any notice to the complainant. The complainant received the notice of admission of appeal on 08.03.2020. According to him, however, soon thereafter there was a nationwide lockdown and on account of which he could put up his appearance before the Sessions Court only on 20.08.2020 once the situation became semi normal. On 17.11.2020 the petitioner moved an application before the Sessions Court in the said pending appeal and requested that the appellant be directed to deposit 20% of the fine amount in terms of Section 148 of the Negotiable Instruments Act. This application was dismissed by the appellate Court by impugned order dated 23.02.2021 on following grounds:

(i) That the appeal is already admitted for hearing and part hearing has already taken place and thus the appeal would be decided shortly;

(ii) The Court cannot review its own order regarding admission of the appeal; and

(iii) The Court has also passed an order suspending the sentence and any such direction for depositing 20% of the fine amount would amount to review of such order passed in Criminal Misc. Application No.05 of 2020.

4. Learned counsel for the petitioner Mr. Rajib Saha submitted that there was no delay on part of the petitioner in moving the application for depositing the amount. The learned Judge committed a serious error in rejecting such application on this ground. He further submitted that merely because the appeal was ripe for hearing, would not be a ground for refusing to exercise power under Section 148 of the Act. He lastly pointed out that the order for suspension of sentence was passed without a notice to the petitioner. He drew my attention to a judgment of the Supreme Court in case of Surinder Singh Deswal @ Col. S.S. Deswal & others v. Virender Gandhi & another dated 08-01-2020 in which in context of Section 148 of the Negotiable Ins