IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 07.01.2025 Surender Kumar ...Petitioner Versus Raj Kumar ...Respondent CORAM: HON'BLE MR. JUSTICE KARAMJIT SINGH Present: Mr. Kushager Goyal, Advocate for the petitioner.

****

KARAMJIT SINGH, J. (ORAL)

1. The present petition under Section 528 of BNSS 2023 has been filed for setting aside of order dated 07.11.2024 (Annexure P-5) passed by the Court of Additional Sessions Judge, Sirsa in CRA-72/2024 titled as Surender Kumar Vs. Raj Kumar whereby the sentence of the petitioner under Section 138 of Negotiable Instruments Act (for brevity, NI Act) has been suspended subject to the condition to pay 20% amount of the compensation awarded by the trial Court within 60 days, as per provision contained in Section 148 of NI Act, failing which the order of suspension of sentence was directed to be deemed to have been vacated in view of the law laid down by Hon’ble Supreme Court in Surinder Singh Deswal @ Col. S.S. Deswal and others Vs. Virender Gandhi and another 2020 (1) SCC (Cri) 506

2. The counsel for the petitioner submits that respondent filed criminal complaint under Section 138 of NI Act against the petitioner wherein on conclusion of trial, the petitioner was convicted and sentenced to S.I. for a period of two years and to pay compensation worth Rs.16,00,000/-, and in default to further undergo SI for a period of one month under Section 138 NI Act vide judgment and order dated 08.02.2024 by the Court of Judicial Magistrate Ist Class, Sirsa. Being aggrieved, petitioner has preferred appeal against the said judgment and order and the Appellate Court vide order dated 07.11.2024 (Annexure P-5) entertained the appeal and suspended the sentence of the petitioner during pendency of the appeal, subject to deposit of 20% of the amount of compensation awarded by the trial Court within next 60 days.

3. Learned counsel for the petitioner, inter alia, contends that the learned lower Appellate Court failed to appreciate the facts in the right perspective and imposed the condition to deposit 20% of the compensation in a mechanical manner, without assigning any reasons and such a condition is illegal, arbitrary and in violation of the law as laid down by the Hon’ble Supreme Court in Criminal Appeal Nos.2741 of 2023 (@ SLP(Crl.) Nos. 4927 of 2023 Jamboo Bhandari vs. M.P. State Industrial Development Corporation Ltd. and others, decided on 04.09.2023, wherein it was observed as follows:-

“6. What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded. 7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an petitioner who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said 4 conclusion must be recorded.”

4. I have heard the counsel for the petitioner and gone through the impugned order and the case law referred by counsel for the petitioner and is of the view that the impugned order dated 07.11.2024 to the extent whereby petitioner is directed to deposit 20% of the compensation amount awarded by trial Court is not passed by the Appellate Court in accordance with the law laid down by the Hon’ble Supreme Court in Jamboo Bhandari’s case (supra) and re-affirmed by the