The appellate Court's condition to deposit 20% of compensation under Section 148 of the NI Act is directory, not mandatory, and must consider exceptional circumstances presented by the accused.

ORDER

This petition has been filed to modify the condition that the petitioner shall deposit 20% of the compensation amount before the Trial Court at the credit of S.T.C.No.1747 of 2022 in the order passed by the Trial Court in Crl.M.P.No.1 of 2025 in C.A.No.91 of 2025, dated 23.01.2025 on the file of the Principal Sessions Judge, Chennai.

2. Heard the learned counsel appearing on either side and perused the materials placed on record.

3. The petitioner is an accused in the complaint lodged by the respondent alleging that the petitioner borrowed money and in order to repay the same, the petitioner issued a cheque dated 20.12.2021 to the tune of Rs.5,00,000/- and when the same was presented for collection, it got dishonoured for the reason “funds insufficient”. After issuance of notice as contemplated under Section 138 of NI Act, filed complaint.

4. After fulfledged trial, the Trial Court found the petitioner guilty and convicted her for the offence punishable under Section 138 of NI Act and sentenced her to undergo six months simple imprisonment and also awarded compensation to the tune of the cheque amount, failing which to undergo two months simple imprisonment. Aggrieved by the same, the petitioner preferred an appeal in C.A.No.91 of 2025 along with an application to suspend the sentence imposed by the Trial Court. The appellate Court suspended the sentence of the petitioner imposed by the Trial Court, on condition that the petitioner shall deposit 20% of the compensation amount to the credit of the Trial Court. However, the petitioner could not able to deposit the said amount and as such, the petitioner was arrested and remanded to judicial custody on 03.12.2024.

5. The learned counsel for the petitioner would submit that after borrowal of loan amount, the petitioner had repaid the entire loan amount with interest. She categorically replied for the notice issued by the respondent under Section 138 of NI Act and additional reply notice was also issued to the respondent. Both the reply notices were marked as Exs.P6 and P7. Even then, the Trial Court failed to consider the same and did not even discuss the reply notices and mechanically convicted the petitioner. Further, the provisions under Section 148 of NI Act is only directory in nature and it is not mandatory. Therefore, the appellate Court ought not to have imposed any condition while suspending the sentence.

6. In support of his contention, he relied upon the Judgment reported in 2023 (10) SCC 446 in the case of Jamboo Bhandari Vs Madhya Pradesh State Industrial Development Corporation Limited and other, in which the Hon'ble Supreme Court of India held as follows:-

“ 7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused 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 conclusion must be recorded.

8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea.

9. We disagree with the above submission. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception