Cheque Bounce Interim Compensation Case High Court Chandigarh

In this post we will discuss about Suspension of Sentence in Cheque Bounce case wherein the petition was allowed, in exercise of powers under Sections 397, 401 and 482 of the Cr.P.C., to the extent of extension of time for deposit of 25% of the amount of compensation awarded by the trial Court to the period of 90 days permitted under Section 148(2) of the Cr.P.C.. In 7 of 8 CRR-597-2020 (O&M) case the petitioner deposits 25% of the compensation amount awarded by the trial Court, the impugned order dated 13.02.2020 qua vacation of order for suspension of her sentence shall stand set aside.

Also Read- Depositing part compensation can’t be pre-condition for admitting plea in cheque bounce cases, rules HC

FACTS OF THE CASE:

The respondent of this case Shobha had a filed Complaint No. NACT 68 of 2016 titled ‘Shobha Vs. Neeru Saini’ under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act‘) against the petitioner-accused. On trial the accused was convicted and sentenced under Section 138 of the N.I. Act by learned Judicial Magistrate First Class, Panchkula vide judgment of conviction and order of sentence dated 23.10.2019. The petitioner filed Criminal Appeal No.274 of 2019 on which her sentence was suspended by 1 of 8 CRR-597-2020 (O&M)

ALSO READ-SECTION 148 OF NI ACT AND CONDITION FOR SUSPENSION OF SENTENCE: WHAT THE SUPREME COURT HELD

The learned Additional Sessions Judge, Panchkula vide order dated 13.12.2019 whereby the petitioner was directed to deposit 25% of the compensation amount awarded by the trial Court within one week. The time for deposit of 25% of the compensation amount was subsequently extended to 20.01.2020 vide order dated 21.12.2019 and to 13.02.2020 vide order dated 20.01.2020. The petitioner filed CRR-419-2020 titled as ‘Neeru Saini versus Shobha’ before this Court which was dismissed as withdrawn vide order dated 11.02.2020 with liberty to the petitioner to file application before learned Appellate Court for extension of time for deposit of 25% of the compensation amount awarded by the trial Court in favour of the complainant. The petitioner did not file any application for extension of time and did not appear before the learned Appellate Court on 13.02.2020 on which the order for suspension of sentence of the petitioner was vacated and the petitioner was directed to surrender before the trial Court within four days failing which the trial Court was directed to secure her presence by issuing warrant of arrest so that the petitioner was made to undergo the sentence as awarded by the trial Court.

ALSO READ-CRIMINAL REVISION CHEQUE BOUNCE HIGH COURT CHANDIGARH

ISSUES OF THE CASE:

Whether the petitioner can be granted vacation of order for suspension of her sentence?

Whether the petitioner can get an extension to pay the 25% deposit failing to submit the application in the appellate court?

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CASE SUMMARY:

The petitioner filed CRR-419-2020 titled as ‘Neeru Saini Vs. Shobha’ before this Court which was dismissed as withdrawn vide order dated 11.02.2020 with liberty to the petitioner to file application before learned Appellate Court for extension of time for deposit of 25% of the compensation amount awarded by the trial Court in favour of the complainant. The petitioner did not file any application for extension of time and did not appear before the learned Appellate Court on 13.02.2020 on which the order for suspension of sentence of the petitioner was vacated and the petitioner was directed to surrender before the trial Court within four days failing which the trial Court was directed to secure her presence by issuing warrant of arrest so that the petitioner was made to undergo the sentence as awarded by the trial Court.

ALSO READ-SECTION 138 NI ACT: SUPREME COURT SUSPENDED THE SENTENCE EVEN WITHOUT ISSUING NOTICE TO THE COMPLAINANT

Feeling aggrieved the petitioner has filed the present petition. In the petition the petitioner has averred that she instructed her counsel to file application for extension of time to deposit 25% of the compensation amount awarded by the trial Court but her counsel did not file the same due to which the conditional order of suspension of her sentence was vacated. On being contacted, her counsel told her that on 13.02.2020 he was not well and could not appear before the Appellate Court. The petitioner has two minor children and is residing alone without her husband. Due to poverty the petitioner was unable to maintain her 10 months old daughter and gave her daughter to her relative. The petitioner will deposit the amount by arranging the same from her relatives. The petitioner is ready to deposit 25% of the compensation amount awarded by the trial Court. Therefore, the impugned order may be set aside and time for deposit of the above said amount may be extended.

ALSO READ-CHEQUE BOUNCE PROCEDURE IN TRICITY

PROVISION:

Section 148 of the N.I Act explains the 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:

Also Read- Bombay High Court

Ajay Vinodchandra Shah vs The State Of Maharashtra And Anr on 14 March, 2019

Provided that the amount payable under this subsection shall be in addition to any interim compensation paid by the appellant under section 143A.

(2) The amount referred to in subsection (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.”

ALSO READ-SURINDER SINGH DESWAL DESWAL & ORS. VERSUS VIRENDER GANDHI & ANR

JUDGEMENT:

In the facts and circumstances of the case, sufficient ground for extension of time for deposit of 25% of the amount of compensation awarded by the trial Court for another period of 30 days was made out. The period of 90 days permissible under Section 148(2) of the Cr.P.C. for deposit of 25% of the compensation amount awarded by the trial Court has not yet expired. On filing of any such application and sufficient cause being shown, the time would have been extended by the Appellate Court. However, the petitioner could not appear and despite her instructions, her counsel also could not file application for extension of time for deposit of 25% of the amount of compensation awarded by the trial Court due to his illness. Due to there being no provision in the Cr.P.C. permitting review, the learned Additional Sessions Judge, Panchkula cannot review the impugned order dated 13.02.2020 to extend the time.

ALSO READ-MAINTAINABILITY OF REVISION PETITION BEFORE HIGH COURT CHANDIGARH

In these exceptional facts and circumstances of the case, the petition is allowed, in exercise of powers under Sections 397, 401 and 482 of the Cr.P.C., to the extent of extension of time for deposit of 25% of the amount of compensation awarded by the trial Court to the period of 90 days permitted under Section 148(2) of the Cr.P.C. and the petitioner is accordingly allowed to deposit 25% of the amount of compensation awarded by the trial Court on or before 12.03.2020. In 7 of 8 CRR-597-2020 (O&M) case the petitioner deposits 25% of the compensation amount awarded by the trial Court, the impugned order dated 13.02.2020 qua vacation of order for suspension of her sentence shall stand set aside. However, in case of failure of the petitioner to do so, the impugned order dated 13.02.2020 for vacation of suspension of her sentence shall remain operative and the petitioner shall be bound to surrender on 12.03.2020 and in case of her failure to do so, the petitioner shall be liable to be arrested in execution of the warrant of arrest to be issued by the trial Court for undergoing the sentence imposed on her.

ALSO READ-CHEQUE BOUNCE CASE: YOU WILL HAVE TO DEPOSIT 20 PERCENT AMOUNT FOR APPEAL, SAYS SC

JUDGEMNT RELATING TO THIS CASE:

In Surinder Singh Deswal and others Vs. Virender Gandhi (SC): 2019 RCR (Criminal) 186:

Supreme Court has held that the provisions of Section 148 of the N.I. Act are retrospective in nature and Section 148 of the N.I. Act, as amended, will 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 complaint for the offence under Section 138 of the N.I. Act was filed prior to enactment of the Negotiable Instruments (Amendment) Act, 2018 (20 of 2018) w.e.f. 01.09.2018 and that though in amended Section 148 of the N.I. Act, the word used is “may”, but considering the amended Section 148 of the N.I. Act as a whole to be read with the Statement of Objects and Reasons of amending the same, it is generally to be construed as a “rule” or “shall” and not directing of the appellant by the appellate court to deposit minimum of twenty per cent of the fine or compensation awarded by the trial Court is an exception for which special reasons have to be assigned.

ALSO READ-BAIL CAN BE CANCELLED FOR NOT DEPOSITING RELIEF AMOUNT: HC

This post is written by Gurleen Kaur Anand

For case specific advice, please contact top expert cheque bounce criminal lawyers of Punjab Haryana High Court Chandigarh in Tricity (Panchkula Mohali Kharar Derabassi Zirakpur Baltana).

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