Karnataka High Court
Sri V Arun Kumar vs Sri Vinod Krishnamurthy on 23 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 5594 OF 2022
C/W
CRIMINAL PETITION NO. 5595 OF 2022
CRIMINAL PETITION NO. 5596 OF 2022
CRIMINAL PETITION NO. 5599 OF 2022
CRIMINAL PETITION NO. 5601 OF 2022
CRIMINAL PETITION NO. 5609 OF 2022
CRIMINAL PETITION NO. 5707 OF 2022
CRIMINAL PETITION NO. 5709 OF 2022
CRIMINAL PETITION NO. 5711 OF 2022
Digitally signed by
PADMAVATHI B K
Location: HIGH IN CRIMINAL PETITION NO. 5594 OF 2022
COURT OF
KARNATAKA
BETWEEN:
SRI V.ARUN KUMAR
AGED ABOUT 53 YEARS,
S/O B.N.VAJRAVELU
R/AT NO.839, 5TH BLOCK,
17TH "F" MAIN, RAJAJINAGAR
BENGALURU - 10.
...PETITIONER
(BY SRI SANDESH J CHOUTA, SR.ADVOCATE FOR
SRI MAHESH KIRAN SHETTY S., ADVOCATE)
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
AND:
SRI VINOD KRISHNAMURTHY
AGED ABOUT 40 YEARS,
S/O KRISHNAMURTHY
R/AT NO.714, 3RD BLOCK
3RD STAGE, 8TH "D" MAIN,
BASAVESHWARANAGARA
BENGALURU - 79.
...RESPONDENT
(BY SRI ANANTH MANDAGI, SR.ADVOCATE FOR
SRI CHETHAN B., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
15.03.2022 PASSED BY THE LEARNED 68th DISTRICT AND
SESSIONS JUDGE (CCH-69) IN CRL.A.NO.295/2022 BY VIRTUE
OF WHICH THE LEARNED SESSIONS JUDGE WHILE
SUSPENDING THE SENTENCE PASSED BY THE XXIII
ADDL.C.M.M., BENGALURU IN C.C.NO.22573/2016 IMPOSED
CONDITION TO DEPOSIT 20 PERCENT OF THE FINE AMOUNT
AND PASS AN ORDER MODIFYING THE ORDER DATED
15.03.2022 BY REDUCING THE PERCENTAGE OF THE AMOUNT
FROM 20 PERCENT TO ANY LESSER PERCENTAGE AS THIS
HONOURABLE COURT DEEM FIT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE IN CRL.A.NO.295/2022
PENDING ON THE FILE OF 68th DISTRICT AND SESSIONS
JUDGE (CCH-69).
IN CRIMINAL PETITION NO. 5595 OF 2022
BETWEEN:
SRI V.ARUN KUMAR
S/O B.N.VAJRAVELU
AGED ABOUT 53 YEARS
R/A NO.839, 5TH BLOCK
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
17TH "F" MAIN, RAJAJINAGAR
BENGALURU - 10.
... PETITIONER
(BY SRI SANDESH J CHOUTA, SR.ADVOCATE FOR
SRI MAHESH KIRAN SHETTY S., ADVOCATE)
AND:
M/S PRAJWAL HOMETEL
REP BY SRI VINOD KRISHNAMURTHY
AGED ABOUT 40 YEARS
S/O KRISHNAMURTHY
R/A NO.714, 3RD BLOCK
3RD STAGE, 8TH "D" MAIN
BASAVESHWARANAGARA
BENGALURU - 79.
... RESPONDENT
(BY SRI ANANTH MANDAGI, SR.ADVOCATE FOR
SRI CHETHAN B., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
15.03.2022 PASSED BY THE LEARNED 68TH DISTRICT AND
SESSIONS JUDGE, IN CRL.A.NO.289/2022 BY VIRTUE OF
WHICH THE LEARNED SESSIONS JUDGE WHILE SUSPENDING
THE SENTENCE PASSED BY THE XXIII A.C.M.M, BENGALURU IN
C.C.NO.26245/2016 IMPOSED CONDITION TO DEPOSIT 20
PERCENT OF THE FINE AMOUNT AND PASS AN ORDER
MODIFYING THE ORDER DATED 15.03.2022 BY REDUCING THE
PERCENTAGE OF THE AMOUNT FROM 20 PERCENT TO ANY
LESSER PERCENTAGE AS THIS HONBLE COURT DEEM FIT
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE IN
CRL.A.NO.289/2022 PENDING ON THE FILE OF THE LEARNED
68TH DISTRICT AND SESSIONS JUDGE.
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
IN CRIMINAL PETITION NO. 5596 OF 2022
BETWEEN:
SRI V.ARUN KUMAR
S/O B.N.VAJRAVELU
AGED ABOUT 53 YEARS
R/A NO.839, 5TH BLOCK
17TH "F" MAIN, RAJAJINAGAR
BENGALURU - 10.
... PETITIONER
(BY SRI SANDESH J CHOUTA, SR.ADVOCATE FOR
SRI MAHESH KIRAN SHETTY S., ADVOCATE)
AND:
M/S PRAJWAL HOMETEL
(FORMALLY CALLED AS HOTEL PRAJWAL)
REP BY SRI VINOD KRISHNAMURTHY
AGED ABOUT 40 YEARS
S/O KRISHNAMURTHY
R/A NO.714, 3RD BLOCK
3RD STAGE, 8TH "D" MAIN
BASAVESHWARANAGARA
BENGALURU - 79.
... RESPONDENT
(BY SRI ANANTH MANDAGI, SR.ADVOCATE FOR
SRI CHETHAN B., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
15.03.2022 PASSED BY THE LEARNED 68TH DISTRICT AND
SESSIONS JUDGE, IN CRL.A.NO.290/2022 BY VIRTUE OF
WHICH THE LEARNED SESSIONS JUDGE WHILE SUSPENDING
THE SENTENCE PASSED BY THE XXIII A.C.M.M, BENGALURU IN
C.C.NO.25763/2016 IMPOSED CONDITION TO DEPOSIT 20
PERCENT OF THE FINE AMOUNT AND PASS AN ORDER
MODIFYING THE ORDER DATED 15.03.2022 BY REDUCING THE
PERCENTAGE OF THE AMOUNT FROM 20 PERCENT TO ANY
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
LESSER PERCENTAGE AS THIS HONBLE COURT DEEM FIT
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE IN
CRL.A.NO.290/2022 PENDING ON THE FILE OF THE LEARNED
68TH DISTRICT AND SESSIONS JUDGE.
IN CRIMINAL PETITION NO. 5599 OF 2022
BETWEEN:
SRI V.ARUN KUMAR
S/O B.N.VAJRAVELU
AGED ABOUT 53 YEARS
R/A NO.839, 5TH BLOCK
17TH "F" MAIN, RAJAJINAGAR
BENGALURU - 10.
... PETITIONER
(BY SRI SANDESH J CHOUTA, SR.ADVOCATE FOR
SRI MAHESH KIRAN SHETTY S., ADVOCATE)
AND:
SRI VINOD KRISHNAMURTHY
AGED ABOUT 40 YEARS
S/O KRISHNAMURTHY
R/A NO.714, 3RD BLOCK
3RD STAGE, 8TH "D" MAIN
BASAVESHWARANAGARA
BENGALURU - 79.
... RESPONDENT
(BY SRI ANANTH MANDAGI, SR.ADVOCATE FOR
SRI CHETHAN B., ADVOCATE
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
15.03.2022 PASSED BY THE LEARNED 68th DISTRICT AND
SESSIONS JUDGE (CCH-69) IN CRL.A.NO.292/2022 BY VIRTUE
OF WHICH THE LEARNED SESSIONS JUDGE WHILE
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
SUSPENDING THE SENTENCE PASSED BY THE XXIII ACMM,
BANGALORE IN C.C.NO.14748/2016 IMPOSED CONDITION TO
DEPOSIT 20 PERCENT OF THE FINE AMOUNT AND PASS AND
ORDER MODIFYING THE ORDER DATED 15.03.2022 BY
REDUCING THE PERCENTAGE OF THE AMOUNT FROM 20
PERCENT TO ANY LESSER PERCENTAGE AS THIS HONBLE
COURT DEEM FIR UNDER TH FACTS AND CIRCUMSTANCES OF
THE CASE IN CRL.A.NO.292/2022 PENDING ON THE FILE OF
THE LEARNED 68th DISTRICT AND SESSIONS JUDGE (CCH-
69).
IN CRIMINAL PETITION NO. 5601 OF 2022
BETWEEN:
SRI V.ARUN KUMAR
S/O B.N.VAJRAVELU
AGED ABOUT 53 YEARS
R/AT NO.839, 5TH BLOCK
17TH "F" MAIN, RAJAJINAGAR
BENGALURU - 10.
... PETITIONER
(BY SRI SANDESH J CHOUTA, SR.ADVOCATE FOR
SRI MAHESH KIRAN SHETTY S., ADVOCATE)
AND:
SRI VINOD KRISHNAMURTHY
AGED ABOUT 40 YEARS
S/O KRISHNAMURTHY
R/AT NO.714, 3RD BLOCK
3RD STAGE, 8TH "D" MAIN
BASAVESHWARANAGARA
BENGALURU - 79.
... RESPONDENT
(BY SRI ANANTH MANDAGI, SR.ADVOCATE FOR
SRI CHETHAN B., ADVOCATE)
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
15.03.2022 PASSED BY THE LEARNED 68th DISTRICT AND
SESSIONS JUDGE (CCH-69) IN CRL.A.NO.293/2022 BY VIRTUE
OF WHICH THE LEARNED SESSIONS JUDGE WHILE
SUSPENDING THE SENTENCE PASSED BY THE XXIII ACMM,
BANGALORE IN C.C.NO.19562/2016 IMPOSED CONDITION TO
DEPOSIT 20 PERCENT OF THE FINE AMOUNT AND PASS AND
ORDER MODIFYING THE ORDER DATED 15.03.2022 BY
REDUCING THE PERCENTAGE OF THE AMOUNT FROM 20
PERCENT TO ANY LESSER PERCENTAGE AS THIS HONBLE
COURT DEEM FIR UNDER THE FACTS AND CIRCUMSTANCES OF
THE CASE IN CRL.A.NO.293/2022 PENDING ON THE FILE OF
THE LEARNED 68th DISTRICT AND SESSIONS JUDGE (CCH-
69).
IN CRIMINAL PETITION NO. 5609 OF 2022
BETWEEN:
SRI V.ARUN KUMAR
S/O B.N.VAJRAVELU
AGED ABOUT 53 YEARS
R/AT NO.839, 5TH BLOCK
17TH "F" MAIN, RAJAJINAGAR
BENGALURU - 10.
... PETITIONER
(BY SRI SANDESH J CHOUTA, SR.ADVOCATE FOR
SRI MAHESH KIRAN SHETTY S., ADVOCATE)
AND:
SRI VINOD KRISHNAMURTHY
AGED ABOUT 40 YEARS
S/O KRISHNAMURTHY
R/AT NO.714, 3RD BLOCK
3RD STAGE, 8TH "D" MAIN
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
BASAVESHWARANAGARA
BENGALURU - 79.
... RESPONDENT
(BY SRI ANANTH MANDAGI, SR.ADVOCATE FOR
SRI CHETHAN B., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
15.03.2022 PASSED BY THE LEARNED LXVIII ADDITIONAL
DISTRICT AND SESSIONS JUDGE (CCH-69) IN
CRL.A.NO.291/2022 BY VIRTUE OF WHICH THE LEARNED
SESSIONS JUDGE WHILE SUSPENDING THE SENTENCE
PASSED BY THE XXIII ADDL.C.M.M., BENGALURU IN
C.C.NO.19150/2016 IMPOSED CONDITION TO DEPOSIT 20
PERCENT OF THE FINE AMOUNT AND PASS AN ORDER
MODIFYING THE ORDER DATED 15.03.2022 BY REDUCING THE
PERCENTAGE OF THE AMOUNT FROM 20 PERCENT TO ANY
LESSER PERCENTAGE AS THIS HONOURABLE COURT DEEM FIT
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE IN
CRL.A.NO.291/2022 PENDING ON THE FILE OF LXVIII
ADDITIONAL DISTRICT AND SESSIONS JUDGE (CCH-69).
IN CRIMINAL PETITION NO. 5707 OF 2022
BETWEEN:
SRI V.ARUN KUMAR
S/O B.N.VAJRAVELU
AGED ABOUT 53 YEARS
R/AT NO.839, 5TH BLOCK
17TH "F" MAIN, RAJAJINAGAR
BENGALURU - 10.
... PETITIONER
(BY SRI SANDESH J. CHOUTA, SR.ADVOCATE FOR
SRI MAHESH KIRAN SHETTY S., ADVOCATE)
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
AND:
SRI VINOD KRISHNAMURTHY
AGED ABOUT 40 YEARS
S/O KRISHNAMURTHY
R/AT NO.714, 3RD BLOCK
3RD STAGE, 8TH "D" MAIN
BASAVESHWARANAGARA
BENGALURU - 79.
... RESPONDENT
(BY SRI ANANTH MANDAGI, SR.ADVOCATE FOR
SRI CHETHAN B., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
15.03.2022 PASSED BY THE LEARNED 68TH ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE (CCH-69) IN CRL.A.NO.297/2022
BY VIRTUE OF WHICH THE LEARNED SESSIONS JUDGE WHILE
SUSPENDING THE SENTENCE PASSED BY THE XXIII ACMM
BENGALURU IN C.C.NO.18207/2016 IMPOSED CONDITION TO
DEPOSIT 20 PERCENT OF THE FINE AMOUNT AND PASS AN
ORDER MODIFYING THE ORDER DATED 15.03.2022 BY
REDUCING THE PERCENTAGE OF THE AMOUNT FROM 20
PERCENTAGE TO ANY LESSER PERCENTAGE AS THIS HONBLE
COURT DEEM FIT UNDER THE FACTS AND CIRCUMSTANCE OF
THE CASE IN CRL.A.NO.297/2022 PENDING ON THE FILE OF
THE LEARNED 68th DISTRICT AND SESSIONS JUDGE
(CCH-69).
IN CRIMINAL PETITION NO. 5709 OF 2022
BETWEEN:
SRI V.ARUN KUMAR
S/O B.N.VAJRAVELU
AGED ABOUT 53 YEARS
R/AT NO.839, 5TH BLOCK
17TH "F" MAIN,
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
RAJAJINAGAR
BENGALURU - 10.
... PETITIONER
(BY SRI SANDESH J. CHOUTA, SR.ADVOCATE FOR
SRI MAHESH KIRAN SHETTY S., ADVOCATE)
AND:
SRI VINOD KRISHNAMURTHY
AGED ABOUT 40 YEARS
S/O KRISHNAMURTHY
R/AT NO.714, 3RD BLOCK
3RD STAGE, 8TH "D" MAIN
BASAVESHWARANAGARA
BENGALURU - 79.
... RESPONDENT
(BY SRI ANANTH MANDAGI, SR.ADVOCATE FOR
SRI CHETHAN B., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
15.03.2022 PASSED BY THE LEARNED LXVIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE (CCH-69), BENGALURU IN
CRL.A.NO.294/2022 BY VIRTUE OF WHICH THE LEARNED
SESSIONS JUDGE WHILE SUSPENDING THE SENTENCE
PASSED BY THE XXIII ADDL.C.M.M., BENGALURU IN
C.C.NO.21195/2016 IMPOSED CONDITION TO DEPOSIT 20
PERCENT OF THE FINE AMOUNT AND PASS AN ORDER
MODIFYING THE ORDER DATED 15.03.2022 BY REDUCING THE
PERCENTAGE OF THE AMOUNT FROM 20 PERCENT TO ANY
LESSER PERCENTAGE AS THIS HONOURABLE COURT DEEM FIT
UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE IN
CRL.A.NO.294/2022 PENDING ON THE FILE OF LXVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-69).
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
IN CRIMINAL PETITION NO. 5711 OF 2022
BETWEEN:
SRI V.ARUN KUMAR
S/O B.N.VAJRAVELU
AGED ABOUT 53 YEARS
R/AT NO.839, 5TH BLOCK
17TH "F" MAIN,
RAJAJINAGAR
BENGALURU - 10.
... PETITIONER
(BY SRI SANDESH J. CHOUTA, SR.ADVOCATE FOR
SRI MAHESH KIRAN SHETTY S., ADVOCATE)
AND:
M/S PRAJWAL HOMETEL
REP. BY SRI VINOD KRISHNAMURTHY,
AGED ABOUT 40 YEARS
S/O KRISHNAMURTHY
R/AT NO.714, 3RD BLOCK
3RD STAGE, 8TH "D" MAIN
BASAVESHWARANAGARA
BENGALURU - 79.
... RESPONDENT
(BY SRI ANANTH MANDAGI, SR.ADVOCATE FOR
SRI CHETHAN B., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
15.03.2022 PASSED BY THE LEARNED 68TH ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE (CCH-69) IN CRL.A.NO.296/2022
BY VIRTUE OF WHICH THE LEARNED SESSIONS JUDGE WHILE
SUSPENDING THE SENTENCE PASSED BY THE XXIII ACMM
BENGALURU IN C.C.NO.21639/2016 IMPOSED CONDITION TO
DEPOSIT 20 PERCENT OF THE FINE AMOUNT AND PASS AN
ORDER MODIFYING THE ORDER DATED 15.03.2022 BY
REDUCING THE PERCENTAGE OF THE AMOUNT FROM 20
PERCENTAGE TO ANY LESSER PERCENTAGE AS THIS HONBLE
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
COURT DEEM FIT UNDER THE FACTS AND CIRCUMSTANCE OF
THE CASE IN CRL.A.NO.296/2022 PENDING ON THE FILE OF
THE LEARNED 68TH DISTRICT AND SESSIONS JUDGE
(CCH-69).
THESE CRIMINAL PETITIONS COMING ON FOR FURTHER
SUBMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, who is common, in the conglomeration of these cases, calls in question the proceedings pending before the 68th Additional City Civil and Sessions Judge, Bengaluru, with particular reference to the orders, all dated 15.03.2022 in respective Crl.A.Nos.295/2022, 289/2022, 290/2022, 292/2022, 293/2022, 291/2022, 297/2022, 294/2022 and 296/2022, directing 20% of the fine amount in terms of Section 148 of the Negotiable Instruments Act, 1881 (for short 'the Act'), as imposed by the learned XXII Additional Chief Metropolitan Magistrate, while convicting the petitioner in all these cases for the offence punishable under Section 138 of the Act.
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
2. Heard Sri Sandesh J. Chouta, learned senior counsel representing the petitioner and Sri Ananth Mandagi, learned senior counsel representing the respondents in all the petitions.
3. The facts that leads the petitioner to this Court, in these petitions, succinctly stated are as follows:
The petitioner and the respondents had transactions with each other, which results in a memorandum of understanding between the parties. After which, the petitioner appears to have tendered certain instruments / cheques for the amount that were involved in each of the transactions. Those cheques having been presented, were returned for want of sufficient funds by the respective Banks. This lead the respondents - complainants register respective private complaints invoking Section 200 of the Cr.P.C., for the offence punishable under Section 138 of the Act. The learned Magistrate by his order dated 09.02.2022, in all the Cases, convicts the petitioner for the
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AND CONNECTED MATTERS offence punishable under Section 138 of the Act and imposes fine as could be gathered from each of the orders, which are different in different cases, in these conglomeration of cases.
4. The petitioner then files an appeal before the first Appellate Court calling in question the order of conviction in Crl.A.Nos.295/2022, 296/2022, 294/2022, 297/2022, 291/2022, 293/2022, 292/2022, 290/2022 and 289/2022. The Sessions Court by its order dated 15.03.2022, directs deposit of 20% of the fine amount, while staying the conviction order and suspending the sentence. The amount was directed to be deposited in three months. Calling in question these orders and the direction to deposit 20% of the fine amount by the Sessions Court, the petitioner has knocked the doors of this Court in the subject petitions.
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
5. The learned senior counsel for the petitioner would submit that the Appellate Court has erred in directing deposit of 20% of the fine amount under Section 148 of the Act, notwithstanding the fact that the word deployed in Section 148 of the Act is 'may', which would confer such discretion even to exempt deposit while suspending the sentence. He would also submit that the most of the transactions that have happened between the parties are by way of cash and transactions by themselves are suspicious. He would submit that in such circumstance, the Appellate Court ought to have exercised discretion in exempting deposit, pending hearing and disposing the appeals.
6. On the other hand, the learned senior counsel Sri Ananth Mandagi, representing the respondents would refute the submission to contend that the petitioner did not even reply to the statutory notices that were issued in terms of the Act and did not step into the witness box to
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS defend the allegations against him. The Court has considered the entire spectrum of law with regard to presumption against the accused and the fact that the accused has never defended his case. He would submit that Section 148 of the Act does not give any discretion to the Appellate Court to reduce the fine amount of 20% as is sought by the petitioner. He would seek dismissal of the petitions.
7. I have given my anxious consideration to the submissions made by the learned senior counsel representing the parties to the lis and have perused the material on record.
8. The afore-narrated facts are not in dispute. The transactions between the parties is not the issue before this Court. It is an admitted fact that the petitioner gets convicted for the offence punishable under Section 138 of the Act. The sentence and fine imposed on such
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS conviction would vary from transaction to transaction or case to case but as is between the same parties in all these cases. On conviction, the petitioner prefers appeals before the Appellate Court in Crl.A.Nos.295/2022, 296/2022, 294/2022, 297/2022, 291/2022, 293/2022, 292/2022, 290/2022 and 289/2022, whereby, it directs 20% of the fine amount to be deposited as per Section 148 of the Act.
9. The order of the Appellate Court reads as follows:
"ORDER ON APPLICATION FILED U/SEC.389 OF CR.P.C Appellant has presented the appeal challenging the Judgment passed by the XXIII ACMM, Bangaluru in CC No.22573/2016 dated 09.02.2022 convicting the appellant for the offence punishable U/Sec.138 of N.I.Act and sentencing to pay fine of Rs.73.50,000/ and in default payment of fine the accused/appellant shall undergo one year imprisonment.
Appellant has filed application U/Sec.389 of Cr.P.C seeking suspension of the fine imposed and operation of the execution of sentence.
Heard the learned counsel for the appellant. I have perused the records.
It is needless to say that, the legality of the judgment under appeal has to be examined by this Court.
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AND CONNECTED MATTERS Appellant has attacked the impugned judgment on several grounds. The said ground urged by the appellant to be appreciated after respondent-appreciation of available materials in the file and also keeping in view of the quantum of fine imposed on accused by the learned trial court. This Court feels that, at this juncture interference of this court for scrutinizing the order of the trial court is needed.
It is necessary to mention that under the Negotiable Instruments Act, 1881 as per the provision U/Sec.148 of N.I.Act in an appeal by the drawer against conviction U/Sec. 138 of N.I. Act the appellant Court may order the appellant to deposit such a sum which shall be a minimum of 20% of the fine or compensation ordered by the trial Court. Hence, as per the provision it is necessary to direct the appellant to deposit 20% of the fine or compensation awarded by the trial court. Having regard to the provisions U/sec.389 of Cr.P.C and Sec.148 of N.I.Act in the facts and circumstances, it is proper to suspend operation of impugned judgment and sentence on deposit of 20% of fine or compensation awarded by the trial court, subject to below noted conditions in the result this court proceed to pass the following:
ORDER The operation and execution of order of sentence passed by the XXIII ACMM, Bangaluru in CC.No.22573/2016 dated 09.02.2022 is hereby suspended for 3 months subject to condition that the appellant/accused shall deposit 20% of the fine amount.
The appellant/accused shall execute the personal bond of Rs 25.000/- with one surety to the satisfaction of the Trial Court within two months from the date of this order. Failing which the order stands ineffective.
Issue notice to respondent by 16/5."
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS (Emphasis added)
10. The contention of the learned senior counsel representing the petitioner, is that, the word deployed in Section 148 of the Act is 'may', which makes the provision directory and not mandatory. He relies on the judgment of the Apex Court in the case of SURINDER SINGH DESWAL AND OTHERS VS. VIRENDER GANDHI reported in (2019) 11 SCC 341, to contend that the Apex Court has considered the purport of both Sections 143A and 148 of the Act and has held that discretion is available to the Appellate Court to exempt deposit in certain circumstances, for reasons to be recorded in writing. Therefore, it is his submission that the Appellate Court ought to have exercised such discretion and exempt deposit while suspending the sentence. The submission of the learned senior counsel is unacceptable, for want of tenability.
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CRL.P No. 5594 of 2022
AND CONNECTED MATTERS
11. The Apex Court in the afore-quoted judgment has held as follows:
"6.1. The short question which is posed for consideration before this Court is, whether the first appellate court is justified in directing the appellant-original accused who have been convicted for the offence under Section 138 of the NI Act to deposit 25% of the amount of compensation/fine imposed by the learned trial court, pending appeals challenging the order of conviction and sentence and while suspending the sentence under Section 389 CrPC, considering Section 148 of the NI Act as amended?
6.2. While considering the aforesaid issue/question, the Statement of Objects and Reasons of the amendment in Section 148 of the NI Act, as amended by way of Amendment Act 20 of 2018 and Section 148 of the NI Act as amended, are required to be referred to and considered, which read as under:
"The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realise the value of the cheque. Such delays compromise the sanctity of cheque transactions.
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AND CONNECTED MATTERS
2. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy.
3. It is, therefore, proposed to introduce the Negotiable Instruments (Amendment) Bill, 2017 to provide, inter alia, for the following, namely--
(i) to insert a new Section 143-A in the said Act to provide that the court trying an offence under Section 138, may order the drawer of the cheque to pay interim compensation to the complainant, in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and in any other case, upon framing of charge. The interim compensation so payable shall be such sum not exceeding twenty per cent of the amount of the cheque;
and
(ii) to insert a new Section 148 in the said Act so as to provide that in an appeal by the drawer against conviction under Section 138, the appellate court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial court.
4. The Bill seeks to achieve the above objectives."
*** "148. Power of appellate court to order payment pending appeal against
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AND CONNECTED MATTERS conviction.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under Section 138, the appellate court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial court:
Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under Section 143-A. (2) The amount referred to in sub-
section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the appellant.
(3) The appellate court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:
Provided that if the appellant is acquitted, the court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant."
(Emphasis supplied) The Apex Court notices the amendment to Section 148 of the Act by Amendment Act No.20/2018 and clearly
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AND CONNECTED MATTERS holds that the Appellate Court while suspending the sentence has no discretion to reduce the deposit below 20% but in certain exceptional circumstances, for special reasons to be assigned exempt deposit, while passing an order of suspension of sentence and stay of conviction. Such exemptions would not become acceptable to the cases at hand in the light of the trial proceedings before the learned Magistrate.
12. It is not in dispute that the petitioner did not reply to the notices issued when the cheques were dishonoured, on their presentation by the complainant. The learned senior counsel representing the respondent taking this Court to the list of documents contends that a common reply is given on a date anterior to the date on which the cheques were not even presented. Therefore, the submission of the learned senior counsel for the petitioner that the reply in common to all the notices, were infact given sans substance. Even before the learned
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AND CONNECTED MATTERS Magistrate in the trial proceedings, the petitioner has not stepped into the witness box to defend himself by adducing evidence to demonstrate that the amount has been paid or he is not liable for any payment for issuance of those cheques. The Court has taken note of these facts and has rendered the order of conviction against the petitioner.
13. It is also a matter on record that the petitioner has sought adjournments in the trial proceedings on 69 occasions. The 20% amount saddled on the petitioner for such act of dragging the proceedings from 2012-13 to 2020, before the learned Magistrate is justified apart from it being statutorily dictated.
14. Learned senior counsel for the petitioner though seeks to contend that all the transactions are suspicious in nature, as a few of the transactions are made by way of
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AND CONNECTED MATTERS cash, which all these are matters of fact, which has to be considered by the Appellate Court, in the pending appeals.
15. Therefore, the direction issued by the Appellate Court ordering stay of conviction and suspension of sentence, subject to the condition that the petitioner shall deposit 20% of the fine amount is in tune with the provisions of the Act is in tune with Section 148 of the Act. Any acceptance of the prayer of the petitioner in the cases at hand would defeat the very object of the amendment to Section 148 of the Act. No exemption can be made in favour of the petitioner.
16. For the aforesaid reasons, I find no merit in these cases and the petitions stand dismissed.
However, I deem it appropriate, in the peculiar facts of this case, as also the pendency of these cases before this Court, to grant the petitioner another ten weeks time
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AND CONNECTED MATTERS from today, for deposit of 20% of the fine amount as is directed by the Appellate Court in all these cases.
It is made clear that the observations made in the course of this order would not influence or bind the Appellate Court in considering the cases on there respective merit.
Ordered accordingly.
Sd/-
JUDGE nvj