Full Judgment Text
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NON-REPORTABLE
2023INSC822
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 2741 OF 2023
(@ SLP(CRL.) NO(S). 4927 OF 2023)
JAMBOO BHANDARI …………APPELLANT(S)
VERSUS
M.P. STATE INDUSTRIAL DEVELOPMENT
CORPORATION LTD. & ORS. …………..RESPONDENT(S)
WITH
CRIMINAL APPEAL NO(S). 2742 OF 2023
(@ SLP(CRL.) NO(S). 6336 OF 2023)
JUDGMENT
ABHAY S. OKA, J.
Leave granted.
2. Heard learned counsel appearing for the parties.
3. The appellants in these two appeals were the accused before
the learned Judicial Magistrate who tried them on a complaint filed
by the respondent No. 1 under Section 138 of the Negotiable
Instruments Act, 1881 (for short “N.I. Act”). The learned
Magistrate convicted the appellants and directed them to pay the
cheque amount of Rs. 2,52,36,985/- with interest thereon @ 9% per
annum. An appeal was preferred by the appellants before the
Sessions Court. Relying upon Section 148 of the N.I. Act, the
Signature Not Verified
Sessions Court granted relief under Section 389 of the Code of
Digitally signed by
Neetu Khajuria
Date: 2023.09.12
17:23:43 IST
Reason:
Criminal Procedure, 1973 (for short “Cr.P.C.”) subject to condition
of appellants depositing 20% of the amount of compensation.
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Vide the impugned judgment, the High Court has confirmed the order
of the Sessions Court.
4. The High Court relied upon the decision of this Court in the
case of Surinder Singh Deswal Alias Colonel S.S. Deswal and Others
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v. Virender Gandhi . The High Court proceeded on the footing that,
as this Court has interpreted the word “may” appearing in Section
148 as “shall”, the relief of suspension of sentence under Section
389 of the Cr.P.C. can be granted only by directing the accused to
deposit minimum of 20% of the compensation/fine amount.
5. The paragraph ‘8’ of the decision of this Court in the case of
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Surinder Singh Deswal Alias Colonel S.S. Deswal and Others reads
thus: -
“8. Now so far as the submission on behalf of the
appellants that even considering the language used in
Section 148 of the NI Act as amended, the appellate court
“may” order the appellant to deposit such sum which shall
be a minimum of 20% of the fine or compensation awarded by
the trial court and the word used is not “shall” and
therefore the discretion is vested with the first
appellate court has construed it as mandatory, which
according to the learned Senior Advocate for the
appellants would be contrary to the provisions of Section
148 of the NI Act as amended is concerned, considering the
amended Section 148 of the NI Act as a whole to be read
with the Statement of Objects and Reasons of the amending
Section 148 of the NI Act, the word used is “may”, it is
generally to be construed as a “rule” or “shall” and 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 NI 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 file by the appellant-accused
under Section 389 CrPC to suspend the sentence. The
aforesaid is required to be construed considering the fact
that as per the amended Section 148 of the NI Act, a
minimum of 20% of the fine or compensation awarded by the
trial court is directed to be deposited and that such
amount is to be deposited within a period of 60 days from
1 (2019) 11 SCC 341
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the date of the order, or within such further period not
exceeding 30 days as may be directed by the appellate
court for sufficient cause shown by the appellant.
Therefore, if amended Section 148 of the NI Act is
purposively interpreted in Section 148 of the NI Act, but
also Section 138 of the NI Act. The Negotiable Instruments
Act has been amended from time to time so as to provide,
inter alia, speedy disposal of cases relating to the
offence of the dishonour of cheques. So as to see that 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 having observed
that such delay has compromised the sanctity of the cheque
transactions. Parliament has thought it fit to amend
Section 148 of the NI Act. Therefore, such a purposive
interpretation would be in furtherance of the Objects and
Reasons of the amendment in Section 148 of the NI Act and
also Section 138 of the NI Act.
(underline supplied)”
6. What is held by this Court is that a purposive interpretation
should be made of Section 148 of the N.I. Act. Hence, normally,
Appellate Court will be justified in imposing the condition of
deposit as provided in Section 148. However, in a case where the
Appellate Court is satisfied that the condition of deposit of 20%
will be unjust or imposing such a condition will amount to
deprivation of the right of appeal of the appellant, exception can
be made for the reasons specifically recorded.
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
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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 or not.
10. In these cases, both the Sessions Courts and the High Court
have proceeded on the erroneous premise that deposit of minimum 20%
amount is an absolute rule which does not accommodate any
exception.
11. The learned counsel appearing for the appellants, at this
stage, states that the appellants have deposited 20% of the
compensation amount. However, this is the matter to be examined by
the High Court.
12. In these circumstances, we set aside the impugned orders of
the High Court and restore the revision petitions filed by the
appellants before the High Court. We direct the parties to appear
before the roster Bench of the High Court on 09.10.2023 in the
morning to enable the High Court to fix a date for hearing of the
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revision petitions. As the contesting parties are before the Court,
it will not be necessary for the High Court to issue a notice of
the date fixed for hearing. The High Court, after hearing the
parties, will consider whether 20% of the amount is already
deposited or not. If the Court comes to the conclusion that 20% of
the amount is not deposited, the Court will re-examine the Revision
Petitions in the light of what we have observed in this judgment.
Till the disposal of the restored Revision Petitions, the interim
order passed by this Court ordering suspension of sentence will
continue to operate.
13. The appeals are allowed in above terms.
14. Pending application(s), if any, shall stand disposed of.
..……………………………………..J.
[ABHAY S. OKA]
………………………………………..J.
[PANKAJ MITHAL]
NEW DELHI;
SEPTEMBER 04, 2023.
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ITEM NO.40 COURT NO.7 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 4927/2023
(Arising out of impugned final judgment and order dated 30-08-2022
in CRLR No. 2764/2022 passed by the High Court Of M.P. Principal
Seat At Jabalpur)
JAMBOO BHANDARI Petitioner(s)
VERSUS
M.P. STATE INDUSTRIAL DEVELOPMENT
CORPORATION LTD. & ORS. Respondent(s)
WITH
SLP(Crl) No. 6336/2023 (II-A)
(IA FOR EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT ON IA
93499/2023
FOR EXEMPTION FROM FILING O.T. ON IA 93502/2023)
Date : 04-09-2023 These matters were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE ABHAY S. OKA
HON'BLE MR. JUSTICE PANKAJ MITHAL
For Petitioner(s )Mr. Vinayak Bhandari, Adv.
Ms. Nidhi Khanna, AOR
For Respondent(s) Mr. Sushil Dutt Salwan, Sr. Adv.
Mr. Pramod Dayal, AOR
Mr. Arjun Garg, Adv.
Mr. Nikunj Dayal, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeals are allowed in terms of the signed non-reportable
judgment.
Pending application(s), if any, shall stand disposed of.
(POOJA SHARMA) (AVGV RAMU)
COURT MASTER (SH) COURT MASTER (NSH)
(Signed non-reportable judgment is placed on the file)