Gujarat High Court
Babuji Harjiji Prajapati vs State Of Gujarat on 17 January, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/404/2022 JUDGMENT DATED: 17/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 404 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BABUJI HARJIJI PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR G K VAGHANI(7830) for the Applicant(s) No. 1
MR TUSHAR L SHETH(3920) for the Applicant(s) No. 1
MR RONAK RAVAL, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 17/01/2022
ORAL JUDGMENT
1. This petition is filed under Articles 226 and 227 of the Constitution of India, in which, the petitioner has prayed that the order dated 01.01.2022 passed by the learned 8th Ad-hoc Additional Sessions Judge, Banaskantha - Diyodar below Exh.4 in Criminal Appeal No.1 of 2022 to the extent of imposition of condition of depositing 20% amount of the cheque before the trial Court be quashed and set aside.
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2. Heard learned advocate Mr.Tushar K. Sheth for the petitioner and learned Additional Public Prosecutor Mr.Ronak Raval for the respondent State.
3. Learned advocate for the petitioner has referred the averments made in the memo of the petition and thereafter submitted that the complaint being Criminal Case No.1282 of 2017 under Section 138 of the Negotiable Instruments Act, 1881 ("the N.I. Act"
for short) came to be filed by respondent No.2 against the present petitioner before learned Judicial Magistrate, First Class, Lakhni. It is submitted that after conclusion of the trial, the concerned trial Court has convicted the present petitioner for the offence punishable under Section 138 of the N.I. Act and thereby sentenced the petitioner to suffer simple imprisonment for a period of one year vide judgment and order dated 01.01.2022. It is submitted that against the said order of conviction, the petitioner has preferred Criminal Appeal No.1 of 2022 before the concerned Sessions Court and the Sessions Court has vide the impugned order passed below Exh.4 has directed the petitioner to deposit 20% amount of the cheque within a period of 15 days before the concerned trial Court. The petitioner has, therefore, filed the present petition.
3.1 Learned advocate for the petitioner has referred the relevant documents which are placed on record Page 2 of 10 Downloaded on : Thu Jan 20 21:05:17 IST 2022 R/SCR.A/404/2022 JUDGMENT DATED: 17/01/2022 with the separate paper-book and after referring to the said documents and the depositions of the concerned witnesses recorded by the concerned trial Court, contended that though the complainant has failed to prove his case before the concerned trial Court, the present petitioner accused has been wrongly convicted by the concerned trial Court and, therefore, the petitioner is having a very good case on merits and therefore, he urged that the impugned order passed by the trial Court whereby the petitioner is directed to deposit 20% amount of the cheque be quashed and set aside.
3.2 Learned advocate for the petitioner has argued the case of the petitioner on merits by contending that the concerned trial Court has wrongly convicted the present petitioner. In support of the said contention, learned advocate for the petitioner has placed reliance upon the following decisions.
(1) Krishna Janardhan Bhat vs. Dattatraya G. Hegde reported in (2008) 4 SCC 54 (2) Kumar Exports Vs. Sharma Carpets reported in (2009) 2 SCC 513 (3) Rangappa Vs. Sri Mohan reported in (2010) 11 SCC 441 3.3 After referring to the aforesaid decisions, it is once again contended that the petitioner is having very good case on merits and the trial Court has Page 3 of 10 Downloaded on : Thu Jan 20 21:05:17 IST 2022 R/SCR.A/404/2022 JUDGMENT DATED: 17/01/2022 wrongly convicted him and, therefore, it can be considered to be an exceptional circumstance, for which, this Court may exempt the petitioner to deposit 20% amount of the cheque as directed by the concerned appellate Court. Learned advocate has, therefore, urged that this petition be allowed by quashing and setting aside the impugned order.
4. Learned APP has opposed this petition and mainly referred the provisions contained in Section 148 of the N.I. Act. Learned APP has referred the object and reasons for amending the aforesaid provisions by the Parliament and, thereafter, contended that the appellate Court is empowered to impose such condition. Learned APP further contended that this Court may not enter into the merits of the case of the petitioner because the case of the petitioner is yet to be examined by the appellate Court. It is further submitted that while considering the impugned order passed by the concerned appellate Court by which direction is given to the petitioner to deposit 20% amount of the cheque, this Court may not examine the case of the petitioner on merits and it is not open for this Court to consider at this stage whether the order of conviction passed by the trial Court is legal and valid. Learned APP has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case Surinder Singh Deswal @ Col S.S. Deswal Vs. Virender Gandhi reported (2019) 11 SCC
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5. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the petitioner has been convicted by the trial Court for the alleged offence punishable under Section 138 of the N.I. Act. The petitioner has preferred an appeal before the concerned appellate Court/Sessions Court. The Sessions Court has enlarged the appellant on bail. However, while passing the said order, direction is issued to the petitioner to deposit 20% amount of cheque within stipulated time.
6. At this stage, this Court would like to refer the provisions of Section 148 of the N.I. Act which read as under:
"Section 148 : Power of Appellate Court to order payment pending appeal against conviction.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 143A.
(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 Page 5 of 10 Downloaded on : Thu Jan 20 21:05:17 IST 2022 R/SCR.A/404/2022 JUDGMENT DATED: 17/01/2022 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."
7. From the aforesaid provisions, it is clear that the appellate Court is empowered to pass an order directing the accused to deposit 20% amount of the cheque within stipulated time during the pendency of the appeal filed against the order of conviction.
8. At this stage, this Court would like to refer the decision rendered by the Hon'ble Supreme Court in the case of Surinder Singh Deswal @ Col S.S. Deswal Vs. Virender Gandhi (supra) wherein the Hon'ble Supreme Court has observed in Paragraphs-7, 7.1 and 8 as under:
"7. We have heard the learned counsel for the respective parties at length.
7.1 The short question which is posed for consideration before this Court is, whether the first appellate court is justified in directing the appellants - original accused who have been convicted for the offence under section 138 of the N.I. Act to deposit 25% of the amount of compensation/fine imposed by the learned trial Court, pending appeals challenging the order of Page 6 of 10 Downloaded on : Thu Jan 20 21:05:17 IST 2022 R/SCR.A/404/2022 JUDGMENT DATED: 17/01/2022 conviction and sentence and while suspending the sentence under section 389 of the Cr.P.C., 1973 considering section 148 of the N.I. Act as amended?
xxx xxx xxx
8. It is the case on behalf of the appellants that as the criminal complaints against the appellants under section 138 of the N.I. Act were lodged/filed before the amendment Act No. 20/2018 by which section 148 of the N.I. Act came to be amended and therefore amended section 148 of the N.I. Act shall not be made applicable. However, it is required to be noted that at the time when the appeals against the conviction of the appellants for the offence under section 138 of the N.I. Act were preferred, Amendment Act No. 20/2018 amending section 148 of the N.I. Act came into force w.e.f. 1.9.2018. Even, at the time when the appellants submitted application/s under section 389 of the Cr.P.C., 1973 to suspend the sentence pending appeals challenging the conviction and sentence, amended section 148 of the N.I. Act came into force and was brought on statute w.e.f. 1.9.2018. Therefore, considering the object and purpose of amendment in section 148 of the N.I. Act and while suspending the sentence in exercise of powers under section 389 of the Cr.P.C., 1973 when the first appellate court directed the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court, the same can be said to be absolutely in consonance with the Statement of Objects and Reasons of amendment in section 148 of the N.I. Act.
8.1 Having observed and found that because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of the enactment of section 138 of the N.I. Act was being frustrated, the Parliament has thought it fit to amend section 148 of the N.I. Act, by which the first Page 7 of 10 Downloaded on : Thu Jan 20 21:05:17 IST 2022 R/SCR.A/404/2022 JUDGMENT DATED: 17/01/2022 appellate Court, in an appeal challenging the order of conviction under section 138 of the N.I. Act, is 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. 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. Therefore, submission on behalf of the appellants that amendment in section 148 of the N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 1.9.2018 shall not be applicable has no substance and cannot be accepted, as by amendment in section 148 of the N.I. Act, no substantive right of appeal has been taken away and/or affected. Therefore the decisions of this Court in the cases of Garikapatti Veeraya (supra) and Videocon International Limited (supra), relied upon by the learned senior counsel appearing on behalf of the appellants shall not be applicable to the facts of the case on hand. Therefore, considering the Statement of Objects and Reasons of the amendment in section 148 of the N.I. Act stated hereinabove, on purposive interpretation of section 148 of the N.I. Act as amended, we are of the opinion that 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 N.I. 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. If such a purposive interpretation is not adopted, in that case, the object and purpose of amendment in section 148 of the N.I. Act would be frustrated. Therefore, as such, no error has been committed by the learned first appellate court directing the appellants to deposit 25% of the amount of fine/ compensation as imposed by the learned trial Court considering section 148 of the N.I. Act, as amended."Page 8 of 10 Downloaded on : Thu Jan 20 21:05:17 IST 2022
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9. From the observations made by the Hon'ble Supreme Court in the aforesaid decision, it is clear that the Hon'ble Supreme Court has referred the objects and reasons for amended provisions of Section 148 of the N.I. Act. The said provision confers powers in the appellate Court to direct the appellant
- accused to deposit sum which shall be a minimum of 20% amount of fine or compensation. The Hon'ble Supreme Court has also observed that the amended Section 148 of the N.I. Act is required to be purposefully interpreted in such a manner that it would serve the objects and reasons of not only amended Section 148 of the N.I. Act but also Section 138 of the N.I. Act and 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 N.I. Act. In the aforesaid decision, the Hon'ble Supreme Court has not at all stated that while passing the order under Section 148 of the N.I. Act, the appellate Court has to consider the case of the appellant - accused on merits that whether he is wrongly convicted by the concerned trial Court or not.
10. Learned advocate for the petitioner has placed reliance upon the aforesaid decisions. However, this Court is of the view that it is not open for this Court to examine the case of the petitioner on merits and to give prima-facie finding that the petitioner has been wrongly convicted by the concerned trial Page 9 of 10 Downloaded on : Thu Jan 20 21:05:17 IST 2022 R/SCR.A/404/2022 JUDGMENT DATED: 17/01/2022 Court and more particularly, when the appeal filed by the petitioner is still pending before the appellate Court. Thus, the aforesaid decisions which are rendered by the Hon'ble Supreme Court on merits in a particular facts of a case, would not render any assistance to the present petitioner and more particularly, when this Court is considering the validity of the order passed by the appellate Court under Section 148 of the N.I. Act. Thus, this Court is of the view that there is no substance in the present petition and it is nothing but an attempt to delay the deposit of amount as directed by the appellate Court and, therefore, I am not inclined to interfere with the impugned order.
11. In view of the above discussion, the petition is dismissed.
(VIPUL M. PANCHOLI, J) piyush Page 10 of 10 Downloaded on : Thu Jan 20 21:05:17 IST 2022