Negotiable Instruments Act, 1881: ss.138, 148 – Deposit of fine or compensation for suspension of sentence – Whether s.148 as amended by Act no.20/2018 shall not be applicable with respect to criminal proceedings already initiated prior to the amendment to s.148 of NI Act – Held: s.148 as amended, shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under s.138, even in a case where the criminal complaints for the offence under s.138 were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018 – By the amendment in s.148, it cannot be said that any vested right of appeal of the accused was taken away and/or affected – Therefore, submission that amendment in s.148 shall not be made applicable retrospectively, more particularly with respect to cases/complaints filed prior to 1.9.2018, has no substance as by amendment in s.148, no substantive right of appeal was taken away and/or affected – However, in the peculiar facts and circumstances of the instant case and the fact that the accused-appellants were bonafidely litigating their case and the amount required to be deposited was huge, by exercising powers under Art.142 of the Constitution, the appellants is granted four weeks to deposit the amount as was directed by the first appellate court – Retrospective effect – Code of Criminal Procedure, 1973 – s.389 – Constitution of India – Art.142. Negotiable Instruments Act, 1881: s.148 – Amendment Act No.20/2018 – Legislative intent – Delay tactics of unscrupulous drawers of dishonoured cheques resulted in frustrating the object and purpose of the enactment of s.138 – For this reason Parliament thought it fit to amend s.148 by which the first appellate Court, in an appeal challenging the order of conviction under s.138 was conferred with the power to direct the convicted accused-appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court – Interpretation of statutes – Purposive interpretation – Legislative Intent.
Dismissing the appeals, the Court
HELD: 1. By the amendment in Section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused-appellant has been taken away and/or affected. Considering the Statement of Objects and Reasons of the amendment in Section 148 of the N.I. Act on purposive interpretation of Section 148 of the N.I. Act as amended, Section
148 of the N.I. Act as amended, shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under Section 138 of the Act, even in a case where the criminal complaints for the offence under Section 138 of the N.I. Act were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018. [Para 8.1] [757-D, G-H]
2. When the amended Section 148 of the N.I. Act as a whole is considered with the Statement of Objects and Reasons of the amending Section 148 of the N.I. Act, though it is true that in amended Section 148 of the N.I. Act, the word used is “may”, it is generally to be construed as a “rule” or “shall”. While not to direct to deposit by the appellate court is an exception for which special reasons are to be assigned. Therefore amended Section
148 of the N.I. Act confers power upon the Appellate Court to pass an order pending appeal to direct the Appellant-Accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application filed by the AppellantAccused under Section 389 of the Cr.P.C. to suspend the sentence. Therefore, if amended Section 148 of the N.I. Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the N.I. Act, but also Section 138 of the N.I. Act. Due to delay tactics by the unscrupulous drawers of the dishonoured cheques due to easy filing of the appeals and obtaining stay in the proceedings, an injustice was caused to the payee of a dishonoured cheque who has to spend considerable time and resources in the court proceedings to realise the value of the cheque and such delay has compromised the sanctity of the cheque transactions, the Parliament has thought it fit to amend Section 148 of the N.I. Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the N.I. Act and also Section
138 of the Act. [Para 9] [758-C-H; 759-A-B]
3. The opening word of amended Section 148 of the N.I. Act is that “notwithstanding anything contained in the Code of Criminal Procedure…..”. Therefore irrespective of the provisions of Section 357(2) of the Cr.P.C., pending appeal before the first appellate court, challenging the order of conviction and sentence under Section 138 of the N.I. Act, the appellate court is conferred with the power to direct the appellant to deposit such sum pending appeal which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. In the facts and circumstances of the case and considering the fact that the appellants were bonafidely litigating before this Court challenging the order passed by the first appellate court, in exercise of powers under Article 142 of the Constitution of India and in the peculiar facts and circumstances of the case and the amount to be deposited is a huge amount, further four weeks’ time is granted to the appellants to deposit the amount as directed by the first appellate court. [Paras 10, 11] [759-D-E; 760-A-B]
Garikapatti Veeraya v. N. Subbiah Choudhury AIR 1957 SC 540 : [1957] SCR 488 ; Videocon International Limited v. Securities and Exchange Board of India (2015) 4 SCC 33 : [2015] 3 SCR 1 – held inapplicable. Dilip S. Dhanukar v. Kotak Mahindra Bank (2007) 6 SCC 528 : [2007] 4 SCR 1122 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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