Pankaj Purohit, J
1. Heard learned counsel for the parties.
2. By means of this C528 application, applicant has challenged the order dated 02.12.2024 passed by learned Sessions Judge, Dehradun in Criminal
Appeal No.346 of 2019 Sushil Kumar Sharma Vs. State of Uttarakhand and Others, whereby, a condition was imposed that “operation of the
sentence awarded vide judgment and order dated 08.11.2024 passed by learned Third Additional Chief Judicial Magistrate, Dehradun in Complaint
Case No.10258 of 2013 Kumari Purnima Pandey Vs. Sushil Kumar Sharma, shall remain stayed during the pendency of appeal subject to deposit 20%
of total amount of fine as provided under Section 148 of NI Act within 60 days, failing which, the stay order shall automatically be vacated†and
further prayed to stay the effect and operation of the above mentioned impugned order dated 02.12.2024.
3. It is contended by the learned counsel for the applicant that as per the complaint case, it was alleged that complainant and applicant were close
relatives and the complainant financially aided the applicant to the tune of Rs.13,00,000/- and the applicant assured to return the same. In lieu of the
aforesaid amount, the applicant issued a cheque amounting to Rs.13,00,000/- in favour of the complainant. But, when the said cheque was presented
for encashment, it was returned with remark ‘the account has already been closed’. Thereafter, the applicant underwent trial and after
following the process of law, learned third Additional Chief Judicial Magistrate, Dehradun, vide judgment and order dated 08.11.2024, convicted the
applicant under Section 138 of NI Act and sentenced him to one year’s simple imprisonment with fine of Rs.26,00,000/-, with default stipulation of
two months additional simple imprisonment. Against this order, an appeal was filed and the impugned order dated 02.12.2024 was passed by the
learned Sessions Judge, Dehradun.
4. It is further contended by learned counsel for the applicant that the Appellate Court vide order dated 02.12.2024 directed the applicant to deposit
20% of total amount of compensation, as per the mandate prescribed under Section 148 of the N.I. Act, which is reproduced 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 (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.â€
5. It is also submitted by learned counsel for the applicant that the word ‘may’ used under Section 148 of the N.I. Act makes it a non-
mandatory provision. He also relied upon the Judgment rendered by Hon’ble Supreme Court inS LP (Crl.) No.11906 of 2022 dated 24.11.2023
(Ashok Kumar Vs. State of Uttarakhand and Another), whereby, the Hon’ble Supreme Court has observed as under:
“….During the course of submissions learned counsel for the appellant drew our attention to a recent judgment of this Court in the case
of Jamboo Bhandari Vs. M.P. State Industrial Development Corp. Ltd .reported in (2023) SCC OnLine SC 1144 dated 04.09.2023 and
particularly to Paragraph 6 of the said judgment, which reads as under:
“What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence,n ormally, 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.
In the circumstances, we find that justice would be subserved by permitting the appellant to advance his arguments on the application
seeking waiver of pre-deposit which was dismissed by the Appellate Court and sustained by the High Court in Light of the aforesaid
judgment. Consequently, the impugned order passed by the High Court sustaining the order of the Sessions Court is/are set aside. The
Sessions Court to re-consider the application filed by appellant herein seeking waiver of the pre-deposit.
It is needless to observe that the Sessions Court shall consider the said application in accordance with the observations of this Court in the
aforesaid judgment and in accordance with law.
The appeal is allowed and disposed of in the aforesaid terms. Pending application(s), if any, shall stand disposed of.â€
6. Having gone through the provision of Section 148 of the N.I. Act and after taking into consideration the observations recorded by the Hon’ble
Supreme Court in the judgment rendered on 24.11.2023, this Court is of the considered view that in normal circumstances, the Appellate Court may be
justified in imposing the condition of deposit, as provided in Section 148 of the N.I. Act, and only in those cases, where imposing the condition of
deposit is unjust or which may deprive the accused/appellant to pursue his appeal, an exception can be drawn by deviating from the normal procedure.
In such view of the matter, this Court is of the firm opinion that the Case Law relied upon by learned counsel for the applicant in the case of Ashok
Kumar (Supra) is not applicable in the facts and circumstances of the present case.
7. In view of the foregoing reasons, this Court is not inclined to interfere in the matter. Accordingly, C528 application is dismissed, as the Court finds
that no special circumstance exists in the present case, and the condition of deposit of 20% compensation will neither be unjust nor it will amount to
deprivation of the right of appeal to the applicant.
