BRAJESH KUMAR AGARWAL ERSTWHILE DIRECTOR M/S D.S METAL PVT LTD. vs STATE OF WEST BENGAL AND ANR

IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon’ble Justice Shampa Dutt (Paul)

CRR 3451 of 2024
Brajesh Kumar Agarwal, Erstwhile Director
M/s. D.S. Metals Pvt. Ltd.
Vs.
The State of West Bengal & Anr.


For the Petitioner : Mr. Pinak Kr. Mitra,
Mr. Kushagra Shah,
Ms. Ankita Dutta.



For the Opposite Party : None.



Judgment reserved on : 12.08.2026
Judgment delivered on : 03.09.2026
Shampa Dutt (Paul), J.:
1. The revisional application has been preferred challenging an order no. 2
dated July 8, 2024, passed by the learned Chief Judge, City Sessions
Court, Calcutta, in Criminal Appeal No. 94/2024 whereby rejecting the
prayer of the petitioner for waiver of the condition of the plea deposit as
per Section 148 of the Negotiable Instrument Act, 1881 and directing
that the appeal be admitted subject to the condition that the appellant

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deposits 20% of the final amount before the learned trial Court as
security deposit within 17.08.2024.
2. Vide the impugned order the learned Chief Judge, City Sessions Court,
Calcutta while taking up the matter for hearing of the appeal relied
upon SCC OnLine Bom 560 wherein the Hon’ble Court held as
follows:-
“Whether a deposit of a minimum sum of 20% of the fine or
compensation is necessary under Section 148 of NI Act in
an appeal filed by the persons other than “drawer” against
the conviction and sentence under Section 138 of the NI Act.
In an appeal under section 148 of NI Act filed by the
persons other than “drawer” against the conviction under
section 138 of the NI Act a deposit of a minimum sum of
20% of the fine or compensation is not necessary.
Heard the Ld. Advocates of both sides. Perused the record
and the impugned judgment and order dated 08.04.2024 in
connection with Complaint Case No.CS-384098 of 2024
from where it reveals that the appellant was convicted for
the offence punishable u/s. 138 of Negotiable Instruments
Act, 1881 and sentenced him to pay a fine of
Rs.40,00,000/- in default of payment of fine amount to
suffer simple imprisonment for a period of twelve months.
Now I refer to and rely upon the judgement of the Hon'ble
Supreme Court of India in the case of Surinder Singh
Deswal - Vs - Virender Gandhi reported in AIR 2019 SC
2956 wherein the Hon'ble Court has held that. considering
the amended Section 148 of the N.1. Act as a whole to be
read with the statement of objects and reasons of the
Amendment Act, though it is true that in Section 148(1) of
the N.I. Act, the word used is "may" it is generally to be
construed as a "rule" or "shall" and not to direct to deposit

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by the Appellate Court is an exception for which special
reasons are to be assigned. 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
appellant accused u/s. 389 CrPC to suspend the sentence.
Moreover this Court finds that there are sufficient ground to
proceed with the appeal.
In view of the judgement of the Hon'ble Apex Court in the
case of Surinder Singh Deswal - Vs - Virender Gandhi ,
the appeal is admitted subject to the condition that the
appellant be directed to deposit 20% of the fine amount
before the Ld. Trail Court as security deposit within
17.08.2024.
I am of the view that whether the appellant is the drawer of
the cheque or not or whether the appellant was responsible
for the day to day affairs of the pmpany has already been
decided by the Ld. Trial Court and an order of conviction
has been passed against the appellant. I am of the view
that the opening words of Section 148 of the Negotiable
Instruments Act, are "Notwithstanding anything contained
in the Code of Criminal Procedure, 1973(2 of 1974), in an
appeal by the drawer against conviction u/s 138, 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" Therefore,
irrespective of the provisions of sections 357(2) of the Code
of Criminal Procedure, pending appeal before the First
Appellate Court, challenging the order of conviction and
sentence u/s 138 of the Act, the Appellate Court is
conferred with the power to direct the appellant to deposit

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such sum irrespective of the fact as to whether he is the
drawer or not pending appeal which shall be a minimum of
20% of the fine or compensation awarded by the Trial Court.
Thus the petition filed by the appellant u/s. 148 of the N.I.
Act for waiver of the condition of pre-deposit as per section
148 of the Negotiable Instruments Act, 1881 is rejected.”

3. On perusal of the written complaint being Complaint Case No. CS-
414036/2014, it appears that the petitioner herein along with another
Director and the company have been made an accused in the present
case. The petitioner herein is the accused no. 3 in the petition of
complaint.
4. In paragraph 18 of the written complaint, the complainant has stated
as follows:-
“18. The accused number 2 has not denied his signatures on
the cheque in question at the stage of notice framed u/s 251,
Cr.P.C. and examination u/s 1313, Cr.P.C. All the accused
persons have pleaded that they are innocent during their
examination under Section 313 Cr.P.C.”
Admittedly the petitioner herein is not the accuse no. 2.
5. it is the accused no. 2 who is the signatory of the
It appears that
cheque and is thus the drawer of the cheque on behalf of the
company. The petitioner herein being the accused no. 3
admittedly, did not sign the cheque on behalf of the company though
he was a Director and has now appeared as petitioner as erstwhile
Director M/s. D.S. Metal Pvt. Ltd.

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6. It further appears from the petition of complaint that the principal
allegation is against the accused nos. 1 and 2, the company and the
other Director,
7. There are no specific namely Suresh Kumar Agarwal.allegation against
petitioner no. 3 herein.
8. It appears from the certified copy of the impugned order that the
petitioner herein alone is the appellant before the learned Chief Judge,
City Sessions Court, Calcutta. The other two accused persons are not
before the Court.
9. Considering the said materials on record as noted above by this Court,
this Court finds that the petitioner herein being not directly implicated
in the written complaint is entitled to the relief as prayed for as per the
discretion granted to the learned appellate Court under Section 148 of
the N.I. Act considering that the provision notes that the appellate
Court ‘may’.
10. The petitioner herein has filed his written notes along with the following
judgments relied upon:-
(i) (2007) 6 SCC 528, Dilip S. Dahanukar vs. Kotak Mahindra
Co. Ltd. & Anr.;
(ii) 2024 SCC ONLINE SC 1800, Shri Gurudatta Sugars
Marketing P. Ltd. vs. Prithviraj Sayajirao Deshmukh & Ors.
11. Section 148 N.I. Act, lays down:-
“ Section 148: Power of Appellate Court to order
payment pending appeal against conviction.

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(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 percent 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.”

12. In view of the admitted fact that the petitioner herein (accused no. 3)
is not the drawer of the cheque, the provision of Section 148 of the
N.I. Act is not applicable to the petitioner and was erroneously
allowed against the petitioner herein.
13. Accordingly, CRR 3451 of 2024 stands allowed.

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14. The order no. 2 dated July 8, 2024, passed by the learned Chief
Judge, City Sessions Court, Calcutta, in Criminal Appeal No.
94/2024, is quashed and set aside.
15. Trial Court to proceed in accordance with law.
16. All connected Application stand disposed of.

17. Interim order if any stands vacated.
18. There will be no order as to costs.
19. A copy of this judgment be sent to the learned Trial Court for
necessary compliance.
20. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.


(Shampa Dutt (Paul), J.)