SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND OTHERS versus VIRENDER GANDHI
[2019] 8 S.C.R. 746, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Facts
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SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND
OTHERS
v.
VIRENDER GANDHI
(Criminal Appeal Nos. 917-944 of 2019)
MAY 29, 2019
[M. R. SHAH AND A. S. BOPANNA, JJ.]
Negotiable Instruments Act, 1881: ss.138, 148 – Deposit of
fine or compensation for suspension of sentence – Whether s.148
as amended by Act no.20/2018 shall not be applicable with respect
to criminal proceedings already initiated prior to the amendment to
s.148 of NI Act – Held: s.148 as amended, shall be applicable in
respect of the appeals against the order of conviction and sentence
for the offence under s.138, even in a case where the criminal
complaints for the offence under s.138 were filed prior to amendment
Act No. 20/2018 i.e., prior to 01.09.2018 – By the amendment in
s.148, it cannot be said that any vested right of appeal of the accused
was taken away and/or affected – Therefore, submission  that
amendment in s.148 shall not be made applicable retrospectively,
more particularly with respect to cases/complaints filed prior to
1.9.2018, has no substance as by amendment in s.148, no
substantive right of appeal was taken away and/or affected –
However, in the peculiar facts and circumstances of the instant case
and the fact that the accused-appellants were  bonafidely litigating
their case and the amount required to be deposited was huge, by
exercising powers under Art.142 of the Constitution, the appellants
is granted four weeks to deposit the amount
as was directed by the
first appellate court – Retrospective effect – Code of Criminal
Procedure, 1973 – s.389 – Constitution of India – Art.142.
Negotiable Instruments Act, 1881: s.148 – Amendment Act
No.20/2018 – Legislative intent – Delay tactics of unscrupulous
drawers of dishonoured cheques resulted in frustrating the object
and purpose of the enactment of s.138 – For this reason Parliament
thought it fit to amend s.148 by which the first appellate Court, in
an appeal challenging the order of conviction under s.138 was
conferred with the power to direct the convicted accused-appellant
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to deposit such sum which shall be a minimum of 20% of the fine or
compensation awarded by the trial Court – Interpretation of statutes
– Purposive interpretation – Legislative Intent.
Dismissing the appeals, the Court
HELD: 1. 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.
Considering the Statement of Objects and Reasons of the
amendment in Section 148 of the N.I. Act on purposive
interpretation of Section 148 of the N.I. Act as amended, 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 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.  [Para 8.1] [757-D, G-H]
2. When the amended Section 148 of the N.I. Act as a whole
is considered with the Statement of Objects and Reasons of the
amending Section 148 of the N.I. Act, though it is true that in
amended Section 148 of the N.I. Act, the word used is “may”, it
is generally to be construed as a “rule” or “shall”. While 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 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 under Section 389 of the Cr.P.C. to suspend the
sentence.  Therefore, if amended Section 148 of the N.I. Act is
purposively interpreted in such a manner it would serve the
Objects and Reasons of not only amendment in Section 148 of
the N.I. Act, but also Section 138 of the N.I. Act.  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
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resources in the court proceedings to realise the value of the
cheque and such delay has compromised the sanctity of the
cheque transactions, the Parliament has thought it fit to amend
Section 148 of the N.I. Act.  Therefore, 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 Act. [Para 9] [758-C-H; 759-A-B]
3. The opening word of amended Section 148 of the N.I.
Act is that “notwithstanding anything contained in the Code of
Criminal Procedure…..”. Therefore irrespective of the provisions
of Section 357(2) of the Cr.P.C., pending appeal before the first
appellate court, challenging the order of conviction and sentence
under Section 138 of the N.I. Act, the appellate court is conferred
with the power to direct the appellant to deposit such sum pending
appeal which shall be a minimum of 20% of the fine or
compensation awarded by the trial Court.  In the facts and
circumstances of the case and considering the fact that the
appellants were  bonafidely litigating before this Court challenging
the order passed by the first appellate court, in exercise of powers
under Article 142 of the Constitution of India and in the peculiar
facts and circumstances of the case and the amount to be deposited
is a huge amount, further four weeks’ time is granted to the
appellants to deposit the amount as directed by the first appellate
court. [Paras 10, 11] [759-D-E; 760-A-B]
Garikapatti Veeraya v. N. Subbiah Choudhury AIR 1957
SC 540 : [1957] SCR 488 ; Videocon International
Limited v. Securities and Exchange Board of India
(2015) 4 SCC 33 : [2015] 3 SCR 1 – held inapplicable.
Dilip S. Dhanukar v. Kotak Mahindra Bank (2007) 6
SCC 528 : [2007] 4 SCR 1122 – referred to.
Case Law Reference
[1957] SCR 488
held inapplicable
Para 5.3
[2015] 3 SCR 1
held inapplicable
Para 5.3
[2007] 4 SCR 1122
referred to
Para 5.7
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 917-944 of 2019.
From the Judgment and Order dated 24.04.2019 of the High Court
of Punjab and Haryana at Chandigarh in CRM-M No. 3377, 3790, 3828,
3857, 3860, 3862, 3864, 3867, 3868, 3869, 3871, 3875, 3888, 3894, 3895,
3904, 3906, 3912, 3913, 3921, 3924, 3925, 3926, 3929, 3932, 3949, 4018
& 3369 of 2019 (O&M).
Vijay Hansaria, Sr. Adv., Aman Nandrajog, Sumeer Sodhi and
Siddharth Sharma, Advs. for the Appellants.
Alok Sangwan, Adv. for the Respondent.
The Judgment of the Court was delivered by
M. R. SHAH, J. 1. Leave granted.
2. As common question of law and facts arise in this group of
appeals and, as such, all these appeals, arise out of the impugned common
judgment and order passed by the High Court, are being decided and
disposed of together by this common judgment and order.
3. Feeling aggrieved and dissatisfied with the impugned common
order passed by the High Court of Punjab and Haryana at Chandigarh,
by which the High Court has dismissed the respective revision
applications and has confirmed the order passed by the first appellate
court – learned Additional Sessions Judge, Panchkula, directing the
appellants herein – original appellants – original accused to deposit 25%
of the amount of compensation, in view of the provisions of amended
Act No. 20 of 2018 in Section 148 of the Negotiable Instruments Act,
1881 (hereinafter referred to as the ‘N.I. Act’), the original appellants –
original accused
have preferred the present appeals.
4. The facts leading to the present appeals in nutshell are as under:
That criminal complaints were filed against the appellants
herein – original accused for the offence under Section 138 of the N.I.
Act.  That the said criminal complaints were filed prior to 2.8.2018. That
the learned trial Court vide judgment and order dated 30.10.2018 convicted
the appellants for the offence under Section 138 of the N.I. Act and
sentenced them to undergo imprisonment of two years and to pay cheque
amount + 1% as interest and litigation expenses as fine.
4.1 Feeling aggrieved and dissatisfied with the order of conviction
passed by the learned trial Court, convicting the appellants – original
accused for the offence under Section 138 of the N.I. Act and the
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sentence imposed by the learned trial Court, the appellants – original
accused have preferred criminal appeals before the first appellate
Court – learned Additional Sessions Judge, Panchkula.  In the said
appeals, the appellants – original accused submitted application/s under
Section 389 of the Cr. P.C. for suspension of sentence and releasing
them on bail, pending appeal/s.
4.2 That considering the provisions of amended Section 148 of
the N.I. Act, which has been amended by Amendment Act No. 20/2018,
which came into force w.e.f. 1.9.2018, the first appellate Court, while
suspending the sentence and allowing the application/s under Section
389 of the Cr.P.C, directed the appellants to deposit 25% of the amount
of compensation/fine  awarded by the learned trial Court.
4.3 Feeling aggrieved by the order passed by the learned first
appellate Court – learned Additional Sessions Judge, Panchkula directing
the appellants – original accused – original appellants to deposit 25% of
the amount of compensation/fine awarded by the learned trial Court,
pending appeal challenging the order of conviction and sentence imposed
by the learned trial Court, the appellants approached the High Court of
Punjab and Haryana at Chandigarh by way of revision application/s.
4.4 It was the case on behalf of the appellants that Section 148 of
the N.I. Act, as amended by Act No. 20/2018, shall not be applicable
with respect to criminal proceedings
already initiated prior to the
amendment in Section 148 of the N.I. Act.
4.5 The High Court by a detailed judgment and order has not
accepted the aforesaid contention and has dismissed the revision
application/s and has confirmed the order passed by the learned first
appellate Court – learned Additional Sessions Judge, Panchkula directing
the appellants - original appellants-original accused to deposit 25% of
the amount of compensation awarded by the learned trial Court
considering Section 148 of the N.I. Act, as amended.
4.6 Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court in dismissing the revision
application/s and confirming the order/s passed by the learned first
appellate Court directing the appellants – original appellants – original
accused to deposit 25% of the amount of compensation awarded by the
learned trial Court under Section 148 of the N.I. Act, as amended, the
original appellants – original accused have preferred the present appeals.
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5. Shri Vijay Hansaria, learned Senior Advocate has appeared on
behalf of the appellants – original appellants – original accused and Shri
Alok Sangwan, learned Advocate has appeared on behalf of the original
complainant.
5.1 Shri Vijay Hansaria, learned Senior Advocate appearing on
behalf of the appellants has vehemently submitted that in the present
case, both, the High Court as well as the learned first appellate Court
have materially erred in directing the appellants to deposit 25% of the
amount of compensation as per Section 148 of the N.I. Act, as amended.
5.2 It is vehemently submitted by the learned Senior Advocate
appearing on behalf of the appellants that in the present case as the
criminal proceedings were initiated and the complaints were filed against
the accused for the offence under Section 138 of the N.I. Act, prior to
the amendment Act came into force, Section 148 of the N.I.Act, as
amended shall not be applicable.
5.3 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellants that the legal proceedings, whether civil or
criminal, are to be decided on the basis of the law applicable on the date
of the filing of the suit or alleged commission of offence by the trial
Court or the appellate Court, unless the law is amended expressly with
retrospective effect, subject to the provisions of Article 20(1) of the
Constitution of India.  In support of his above submission, learned Senior
Counsel appearing on
behalf of the appellants has heavily relied upon
the decisions of this Court in the case of Garikapatti Veeraya v. N.
Subbiah Choudhury, reported in AIR 1957 SC 540; and Videocon
International Limited v. Securities and Exchange Board of India,
reported in (2015) 4 SCC 33.
5.4 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellants that even otherwise in the present case, the
first appellate Court has interpreted the word “may” as “shall” in Section
148 of the N.I. Act and proceeded on the basis that it is mandatory for
the appellate Court to direct deposit of minimum of 25% of the fine or
compensation awarded by the trial Court for suspension of sentence.
5.5 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellants that the first appellate Court heavily relied
upon the decision of the Punjab and Haryana High Court in the case of
M/s Ginni Garments and another v. M/s Sethi Garments (CRR No.
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9872 of 2018, decided on 04.04.2019), in which it was held that the
appellate Court continues to have discretion as to the condition to be
imposed or not to be imposed for suspension of sentence and it was
further held that however in case discretion is exercised to suspend the
sentence subject to payment of compensation/fine, such order must
commensurate with Section 148 of the N.I. Act.  It is submitted, however,
in the present case, the appellate Court did not exercise discretion and
proceeded on the assumption that it is mandatory to deposit 25% of the
fine or compensation as a condition for suspension of sentence. It is
submitted that therefore the High Court ought to have remanded the
matter back to the appellate Court to decide on the question of suspension
of sentence as per the decision in the case of M/s Ginni Garments
(supra).
5.6 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellants that a similar view is taken by the Bombay
High Court in the case of Ajay Vinodchandra Shah v. The State of
Maharashtra (Criminal Writ Petition No. 258 of 2019).  It is submitted
that in the said decision, the Bombay High Court has also observed and
held that as per Section 148 of the N.I. Act as amended, the appellate
Court has the discretion to direct deposit the sum pending appeal, but if
at all such direction is given, that sum shall not be less than 20% of the
amount of fine or
compensation awarded by the trial Court.  It is submitted
that in the present case, the appellate Court wrongly presumed that the
requirement under Section 148 of the N.I. Act is the deposit of 25% of
the fine or compensation.
5.7 It is further submitted by the learned Senior Advocate appearing
on behalf of the appellants that in the present case the learned trial
Court imposed the fine under Section 138 of the N.I. Act, equal to the
amount of cheque plus 1%.  It is submitted that as per Section 357(2) of
the Cr.P.C., no such fine is payable till the decision of the appeal.  It is
submitted that therefore also the first appellate Court ought not to have
passed any order directing the appellants to deposit 25% of the amount
of fine/compensation, pending appeal/s.  In support of his above
submission, learned Senior Counsel has heavily relied upon the decision
of this Court in the case of Dilip S. Dhanukar v. Kotak Mahindra
Bank, reported in (2007) 6 SCC 528.
5.8 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to allow the present appeals and quash and set
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aside the impugned order passed by the first appellate court, confirmed
by the High Court, by which the appellants are directed to deposit 25%
of the amount of compensation considering Section 148 of the N.I. Act
as amended.
6. While opposing the present appeals, Shri Alok Sangwan, learned
Advocate appearing on behalf of the original complainant has vehemently
submitted that the order passed by the first appellate Court directing the
appellants to deposit 25% of the amount of compensation/fine pending
appeal and while suspending the sentence imposed by the learned trial
Court is absolutely in consonance  with the Statement of Objects and
Reasons of the amendment in Section 148 of the N.I. Act.  It is submitted
that having found that because of delay tactics  of unscrupulous drawers
of dishonoured cheques due to easy filing of appeals and obtaining stay
on proceedings, the object and purpose of N.I. Act was being frustrated
and having found that due to such delay tactics, injustice is caused to the
payee of a dishonoured cheque who has to spend considerable time and
resources in court proceedings to realize the value of the cheque, the
Parliament thought it fit to amend Section 148 of the N.I. Act, which
confers powers on the first appellate court to direct the appellant (the
convict for the offence under Section 138 of the N.I. Act) to deposit
such sum which shall be minimum of 20% of the fine or compensation
awarded by the trial court.  It is submitted
that therefore the High Court
has rightly refused to interfere with the order passed by the first appellate
court, which was just in consonance with the provisions of Section 148
of the N.I. Act as amended.
6.1 It is further submitted by the learned Advocate appearing on
behalf of the original complainant that the submission on behalf of the
appellants – original accused that Section 148 of the N.I. Act would not
be made applicable retrospectively and shall not be applicable to the
appeals arising out of the criminal proceedings which were initiated much
prior to the amendment in Section 148 of the N.I. Act is concerned, it is
vehemently submitted that the aforesaid submission has no substance.
It is submitted that first of all amendment in Section 148 of the N.I. Act
is procedural in nature and therefore there is no question of applying the
same retrospectively.  It is submitted that as such no vested right of the
appeal of the appellants has been taken away or affected by amendment
in Section 148 of the N.I. Act.  It is submitted that in the present case,
admittedly, the appeals were preferred after the amendment in Section
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148 of the N.I. Act came into force and therefore Section 148 of the
N.I. Act, as amended, is rightly invoked/applied by the learned first
appellate Court.  It is submitted that therefore the amendment so brought
in the Act by insertion of Section 148   of the N.I. Act is purely procedural
in nature and not substantive and does not affect the vested rights of the
appellants, as such, the same can have a retrospective effect and can be
applied in the present case also.
6.2 Now so far as the reliance placed on Section 357(2) of the
Cr.P.C. and the submission of the learned Senior Advocate appearing on
behalf of the appellants that in view of Section 357(2) of the Cr.P.C.,
fine during the pendency of the appeal is not recoverable is concerned,
it is vehemently submitted that in the present case in Section 148 of the
N.I. Act as amended, it is specifically stated that “Notwithstanding
anything contained in the Code of Criminal Procedure, 1973…..”.  It is
submitted that therefore Section 148 of the N.I. Act as amended shall
be applicable and it is always open for the appellate court to direct deposit
of such sum, but not less than 20% of the amount of compensation/fine
imposed by the learned trial court.
6.3 Making the above submissions, it is prayed to dismiss the
present appeals.
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 conviction and sentence and while suspending
the sentence under Section 389 of the Cr.P.C., considering Section 148
of the N.I. Act as amended?
7.2 While considering the aforesaid issue/question, the Statement
of Objects and Reasons of the amendment in Section 148 of the N.I.
Act, as amended by way of Amendment Act No. 20/2018 and Section
148 of the N.I. Act as amended, are required to be referred to and
considered, which read as under:
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“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
realize the value of the cheque. Such delays compromise the
sanctity of cheque transactions.
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 143A 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.
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4. The Bill seeks to achieve the above objectives.”
‘‘148. Power to Appellate Court to order payment pending
appeal against 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 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 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.’’
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. to
suspend the sentence pending appeals challenging the conviction and
sentence, amended Section 148 of the N.I. Act came into force and was
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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., 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 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.
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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.
9. Now so far as the submission on behalf of the appellants that
even considering the language used in Section 148 of the N.I. 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 to direct the appellant
– accused to deposit such sum and the 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 N.I.
Act as amended is concerned, considering the amended Section 148 of
the N.I. Act as a whole to be read with the Statement of Objects and
Reasons of the amending Section 148 of the N.I. Act, though it is true
that in amended Section 148 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 by the appellate court is an exception for which special reasons
are to be assigned. Therefore amended 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 under Section 389 of the Cr.P.C. to suspend the
sentence.  The aforesaid is required to be construed considering the fact
that as per the amended Section 148 of the N.I. 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 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 N.I. Act is purposively interpreted in such a manner it would serve
the Objects and Reasons of not only amendment in Section 148 of the
N.I. Act, but also Section 138 of the N.I. Act.  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 dishonoured of
cheques. So as to see that due to delay tactics by the unscrupulous
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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, the Parliament has thought it fit to amend Section
148 of the N.I. Act.  Therefore, 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 Sec 138 of the N.I. Act.
10. Now so far as the submission on behalf of the appellants,
relying upon Section 357(2) of the Cr.P.C. that once the appeal against
the order of conviction is preferred, fine is not recoverable pending appeal
and therefore such an order of deposit of 25% of the fine ought not to
have been passed and in support of the above reliance placed upon the
decision of this Court in the case of Dilip S. Dhanukar (supra) is
concerned, the aforesaid has no substance.  The opening word of
amended Section 148 of the N.I. Act is that “notwithstanding anything
contained in the Code of Criminal Procedure…..”. Therefore irrespective
of the provisions of Section 357(2) of the Cr.P.C., pending appeal before
the first appellate court, challenging the order of conviction and sentence
under Section 138 of the N.I. Act, the appellate court is conferred with
the power
to direct the appellant to deposit such sum pending appeal
which shall be a minimum of 20% of the fine or compensation awarded
by the trial Court.
In view of the above and for the reasons stated herein above,
impugned Judgment and Order passed by the High Court does not call
for any interference.
11. At this stage, learned Senior Advocate appearing on behalf of
the appellants has requested to grant the appellants some more time
(three months’ time) to deposit the amount as per the order passed by
the first appellate court, confirmed by the High Court.  The said prayer
is opposed by the learned Advocate appearing on behalf of the original
complainant.  It is submitted that as per amended Section 148 of the N.I.
Act, the appellants – accused have to deposit the amount of compensation/
fine as directed by the appellate court within a period of 60 days which
can be further extended by a further period of 30 days as may be directed
by the Court on sufficient cause being shown by the appellants.  However,
SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND
OTHERS v. VIRENDER GANDHI [M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2019] 8 S.C.R.
in the facts and circumstances of the case and considering the fact that
the appellants were  bonafidely litigating before this Court challenging
the order passed by the first appellate court, in exercise of powers under
Article 142 of the Constitution of India and in the peculiar facts and
circumstances of the case and the amount to be deposited is a huge
amount, we grant further four weeks’ time from today to the appellants
to deposit the amount as directed by the first appellate court, confirmed
by the High Court and further confirmed by this Court.
12. In view of the above and for the reasons stated above, we see
no reason to interfere with the impugned common judgment and order
passed by the High Court dismissing the revision application/s, confirming
the order passed by the first appellate court directing the appellants to
deposit 25% of the amount of fine/compensation pending appeals.
The instant appeals are accordingly dismissed with the aforesaid
observations and appellants are now directed to deposit the amount
directed by the first appellate court within extended period of four weeks
from today.
Devika Gujral
Appeals dismissed.