Document Fragment View

Matching Fragments

Mr. Dinesh Arora, learned counsel who is appearing for the petitioners in the cases arising out of the appeals, has submitted that any law which creates a new responsibility upon the appellant during the appeal can also not be applied retrospectively. Hence the provision contained in newly added Section 148 of the Act cannot be applied to the appeals which were pending on the date of enforcement of the amendment, or to the appeals filed in those cases where the trials were pending on the date of enforcement of the amended provision. To substantiate that this provision casts a new substantive obligation upon appellant, the counsel has submitted that although at the conclusion of trial, the Trial Court can award a compensation in favour of the holder of the cheque in due course, however, since appeal is in continuation of the trial, therefore, fine or the compensation awarded by the Trial Court cannot be taken as final. However, under the new provision the fine or compensation awarded by the Trial Court have been given attributes of finality. Under the amended provisions, it has been provided that the compensation ordered by the Trial Court or the Appellate Court under provision of Section 143-A of the Act or Section 148 of the Act, would be recoverable as per the procedure prescribed for recovery of fine. Hence, the 'interim compensation' has been raised to the level of 'finality of the fine' which can be recovered under Section 421 of Cr.P.C. This tantamounts to treating the petitioners as guilty even before finalization of their trials and the appeals and thus subjects the 13 of 39 CRR No.9872-2018(O&M) and other connected cases 14 appellant to the rigour of Section 421 Cr.P.C; for the purpose of recovery of the interim compensation. However, section 421 Cr.P.C itself invites drastic and substantive measures qua the person against whom fine has been imposed, including attachment and sale of his properties. Therefore, since; even property right of the petitioners have been subjected to final consequences; even during pendency of the appeal against their conviction, therefore the provision has the effect of infringing upon the substantive rights of the petitioners. Therefore, the consequence of application of this section are in the nature of 'punishment'. Hence, such a provision cannot be made applicable to the appeals arising from conviction for a transaction of cheque default, which had taken place before enforcement of the Amendment Act. Learned counsel has relied upon the judgment of the Hon'ble Supreme Court rendered in T.Barai versus Henry Ah Hoe and another;1983 AIR (SC) 150, Dayal Singh versus State of Rajasthan; 2004 AIR SCC 2608, Basheer @ N.P.Basheer versus State of Kerala;2004(1) R.C.R (Criminal)1008. Learned counsel has further argued that the object and reasons of the Act as well as the parliamentary debates, which had taken place at the time of enacting these provisions, also shows that the provision is not procedural in nature. The debates and the objects and reasons; would show that the idea behind this amendment was not to streamline any procedure. Rather the idea is to grant relief to the complainant/holder of the cheque in due course; during the trial itself, at the cost of the accused, even before the latter is held guilty of the offence. Hence, application of this provision to pending appeals is introducing a kind of presumpting punishment in retrospectivity, which is prohibited by Article 20 of the Constitution of India.

A bare perusal of Section 143-A of the Act shows that this 26 of 39 CRR No.9872-2018(O&M) and other connected cases 27 section has given power to the Trial Court to order the drawer of the cheque/accused in the trial, to pay interim compensation to the complainant, where the accused has not pleaded guilty of the acquisition made against him. Still further, although a limit of '20% of cheque amount' has been imposed upon power of the Court for ordering interim compensation, however, it has also been provided that if it is not paid within 60 days from the order or within the time, extended by the Court, if any, then the interim compensation shall be recovered under Section 421 Cr.P.C, as if it were a 'fine' imposed upon the accused. Although this Section also provide return of the said amount, in case the accused is acquitted, and for adjustment of the said amount of interim compensation towards final compensation or fine; in case of his conviction, however, till any final order is passed, the accused remains liable for recovery of this amount under Section 421 of Cr.P.C. It would be beneficial to have reference to Section 421 Cr.P.C which is reproduced as under:-

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender."
A perusal of Section 421 Cr.P.C shows that this provision is meant for those persons, who have already been sentenced to pay fine. Still further the amount of interim compensation, deemed as fine under Section 143-A of the Act, can be recovered under Section 421 Cr.P.C by attachment and sale of movable and immovable properties of the accused. The same can also be recovered as amounts of arrears of land revenue from movable or immovable property or both, of the accused. Hence, application of this

However, still the essential question to be considered is whether the provision authorizing the Appellate Court to Order the appellant to deposit a minimum of 20% of the fine or compensation awarded by the Trial Court; is a procedural step or a provision affecting the substantive right of the appellant. In this regard, it deserves to be noted that when the case reaches before the Appellate Court, the appellant/accused has already acquired a status of 'convict', who has already been found guilty of his conduct and sentenced by the Trial Court. In case the Trial Court imposes a fine then making him to pay that amount does not effect his substantive right. Rather it is a matter of procedure only. In case of conviction of an accused, the Trial Court may not impose any fine upon the convict/appellant at all. In such a situation, the Appellate Court would not be able to order the appellant to deposit any amount; because under the provision, Appellate Court is authorized to order deposit of 20% of 'fine' or 'compensation' awarded by the Trial Court. If there is no order of fine or compensation then there cannot be any order of deposit of any amount at the appellate stage. In case the Trial Court imposes a fine, which can be up to twice the amount of the cheque and which can be treated as compensation to be paid to the complainant, in that situation, liability of the accused/appellant has already been determined by the Trial Court. The 33 of 39 CRR No.9872-2018(O&M) and other connected cases 34 liability to pay the amount to the complainant already exists at the time when the appellant comes before the Appellate Court. It is discretion of the Appellate Court whether to suspend the order of imposition of fine or compensation or not. In case the fine is not stayed by the Appellate Court then the entire amount of fine or compensation, otherwise also, becomes recoverable from the accused/appellant as per the procedure prescribed under Section 421 of Cr.P.C. Hence, if the lower Appellate Court has passed the order of deposit of 20% of amount, then although Section 148 of the Act does not specifically mention that amount ordered to be deposited by the Appellate Court would be recoverable under Section 421 Cr.P.C, however, otherwise being part of fine; the same is liable to be recovered only under Section 421 Cr.P.C. Hence, if the Appellate Court passes the order of deposit of 20% or more of amount of fine or compensation that in fact, is a beneficial order for the accused/appellant; because that would mean that the amount of fine or compensation imposed by Trial Court, beyond that 20%, as ordered by the Appellate Court, is ipso facto, being stayed during the pendency of the appeal. Hence instead of prejudicing any substantial right of the appellant this provision is beneficial provision in favour of the accused. Still further there can be a situation where a Trial Court passes sentence of only fine or compensation up to twice the amount of the cheque, without any sentence of imprisonment. In that situation, the fine becomes recoverable immediately. However, Section 424 of Cr.P.C provides that the amount shall be payable in full within 30 days from the date of order of the Trial Court, or at the best in three installments, starting from within 30 days from the order of the Trial Court, and the remaining two installments being paid at the interval of 30 days each. Hence the payment of entire amount of 34 of 39 CRR No.9872-2018(O&M) and other connected cases 35 fine or compensation has to be completed within 90 days. The provision of Section 424 Cr.P.C is reproduced below:-