In this post we will discuss about High Court Appeal in Cheque Bounce case wherein the court held that the right to appeal against conviction is an invaluable statutory right vested upon a convict by Cr.P.C., which cannot be allowed to be defeated by imposing any condition for availing such right.
Cheque Bounce Appeal
Also Read- Breaking: Appeal Against Acquittal In Cheque Bounce Cases
Introduction
The petitioners in all the three cases were arrayed as accused in three different complaints filed against them by respondent/complainant Manish Manchanda under Section 138 of Negotiable Instruments Act, 1881 (from now on referred to as the ‘Act’), alleging therein that the cheques drawn by the accused, upon their presentation in the bank by the complainant for their encashment were dishonoured. As per Section 138 of the Negotiable Instrument Act, 1881-
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138 Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the said notice’s receipt.[1]
ALSO READ- CRIMINAL REVISION CHEQUE BOUNCE HIGH COURT CHANDIGARH
Facts
In the present case of Sudarshan Kumar vs Manish Manchanda [2]Wherein, the petitioners in all the three cases were arrayed as accused in three different complaints filed against them by respondent/complainant Manish Manchanda under Section138 of Negotiable Instruments Act, 1881 (in the future referred to as the ‘Act’), alleging therein that the cheques drawn by the accused, upon their presentation in the bank by the complainant for their encashment were dishonoured. The accused were tried by the Court of Judicial Magistrate First Class, Ludhiana and were found guilty and were imposed a sentence of rigorous imprisonment for one year in each of the three cases and directed to pay compensation. The petitioners/accused, being aggrieved by the judgements holding them guilty preferred appeals in the Court of Sessions wherein, at the time of the admission of appeals, the impugned orders dated 28.2.2020 (Annexure P-3 in all the cases) were passed. Since the impugned orders are identical, one such order as annexed in CRM-M-15131-2020 is reproduced herein below:
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“Criminal Appeal received by entrustment. As there are fairly arguable points involved in the adjudication of the present Appeal hence, the present Appeal is admitted for hearing, subject to just exceptions and to deposit of 20% of the compensation amount because of the latest amendment in Section 148 of Negotiable Instruments Act (applicable w.e.f. 01.09.2018), within one month from today. It is registered as Criminal Appeal. Now notice of this Appeal be issued to the respondent through the ordinary process and speed post on furnishing of speed post charges and copies of grounds of Appeal within a week for 02.07.2020. Trial Court Record be also called for that date.
Along with the Appeal, the appellant has also filed an application for suspension of sentence and bail during the Appeal’s pendency. Hence, the sentence of the appellant is suspended. The appellant is directed to submit the personal bond in the sum of Rs.50,000/- with one surety in the like amount to the Illaqa/Duty Magistrate’s satisfaction within 15 days from today. The appellant shall furnish an affidavit in this court concerning furnishing the personal/surety bonds on the next date. Copy of this order is forwarded to the learned Trial Court with the direction to send the bail bond and surety bond to this court immediately.”
The question of law that was put in the court of law were as follows-
(i) that issuance of a direction under provisions of Section 148 of the Act to deposit an amount not less than 20% of the compensation amount is ‘discretionary and such discretion ought to be exercised judiciously by the Court having due regard to the financial position of the accused and that issuance of such a direction in the instant cases was uncalled for and unwarranted;
(ii) that the impugned order suffers from illegality since the provisions of Section 148 of the Act specifically mandate that a period of 2 months, extendable by another month, shall be afforded to the appellant to deposit the amount as directed to be deposited whereas vide impugned orders, a period of only one month has been afforded;
(iii) that a right to challenge conviction by way of filing an appeal, as enshrined in Section374 of Cr.P.C., cannot be set at nought by imposing some unreasonable condition at the time of admission of Appeal and that the admission of Appeal cannot be made subject to any such condition;
Also Read- Depositing part compensation can’t be pre-condition for Bail
As per Section 148 of the Negotiable Instrument Act, 1881
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:
It 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 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.[3]
Section 148 of the Act, while vesting the Appellate Court with a power to direct the appellants to deposit an amount not less than 20% of the compensation amount, also specifically prescribes the period during which such amount is required to be deposited. Sub-section (2) of Section 148 of the Act, wherein the said period is prescribed.
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Judgement
As an upshot of the discussion made above, all the three petitions described above are accepted in the following terms:
(i) The condition made in the impugned orders wherein the admission of Appeal has been made subject to a deposit of 20% of the compensation amount is set aside, and it is ordered that the appeals shall stand admitted before the lower Appellate Court. However, the petitioners are directed to deposit an amount equivalent to 20% of the amount of compensation awarded by the trial Court within 60 days from today.
(ii) If the amount mentioned above is deposited within 60 days from today, the bail already granted vide order dated 28.2.2020 by lower Appellate Court shall continue subject to any such fresh conditions as may be imposed by lower Appellate Court.
(iii) In case bail of any of the petitioner has been cancelled on account of non-deposit of the amount or has already been taken into custody, he shall be released immediately on bail subject to any such conditions as may be imposed by the lower Appellate Court. He shall, however, deposit the amount of 20% within 60 days from today.
(iv) In case of failure to deposit the amount in question within 60 days from today, it shall be open to the lower Appellate Court to cancel bail and to hear the Appeal on merits, provided, however, subject to any such general directions issued by the High Court in the matter of hearing of cases, having regard to the present circumstances of the spread of pandemic COVID-19.
Even though the Negotiable Instruments Act, 1881 is special and could override provisions of Cr.P.C., but there is no such specific provision in the Act that could be interpreted to mean that availing of right to appeal by a person convicted for an offence under the Act has been made subject to some conditions. The submission, thus, made in this regard on behalf of the petitioner, carries weight and deserves to be accepted.
ALSO READ- SECURING ACQUITTAL IN CHEQUE BOUNCE CASE
Cases Cited
The language of Section 148 of the Act would show that the amended provisions vest the Appellate Court with a discretion to direct deposit of an amount not less than 20% of the compensation amount as awarded by the trial Court. Although the word ‘may’ has been used in the Section but the Hon’ble Apex Court in Surinder Singh Deswal vs Virender Gandhi[4] has interpreted the said provisions to mean that issuance of such a direction is more like a mandate. The relevant extract from the judgement mentioned above reads as follows:
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“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 5 of 11 ( 6) CRM-M-15131-2020; CRM-M-11554-2020 & CRM-M-15189-2020 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………”
Following this, in the case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd[5] the Hon’ble Supreme Court held as under:
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” An appeal is indisputably a statutory right, and an offender who has been convicted is entitled to avail the right of Appeal which is provided for under Section 374 of theCr. PC
Right of Appeal from a judgment of conviction affecting a person’s liberty keeping in view the expansive definition of Article 21 is also a Fundamental Right. Thus, the right of Appeal can neither be interfered with or impaired, nor it can be subjected to any condition.”
Also Read- REPORTABLE IN THE SUPREME COURT OF INDIA .
Conclusion
The right to appeal against conviction is an invaluable statutory right vested upon a convict by Cr.P.C., which cannot be allowed to be defeated by imposing any condition for availing such right. While giving a wider connotation to Article 21 of the Constitution of India, it can even be said that depriving a convict of his right to appeal by imposing any pre-requisite for availing his statutory right to challenge conviction in a higher Court would amount to depriving his liberty without adhering to the established procedure of law. In the present case, though the case has been proven in the lower court, the accused still has the right to appeal as a fundamental Right.
This post is written by Tanya Gorshi
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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[1]Negotiable Instrument Act 1881 , § 138, Act 26 of 1881 (India).
[2]CRM-M-15131-2020 (O&M)
[3]Negotiable Instrument Act 1881, § 148, Act 26 of 1881 (India).
[4](2019)11 SCC 341
[5](2007)6 SCC 528
