Ronita Biswas | National Law University, Orissa | 18th February 2020
Surinder Singh Deswal @ Col. S.S. Deswal & Ors. v. Virendrer Gandhi & Anr. (Criminal Appeal- 1936-1963 of 2019)
Facts
The Appellants were partners of GLM Infratech Private Limited. Respondent was also a partner of the firm, who had recently retired. A cheque was issued by the Appellant to the Respondent against the part payment of the retirement dues. Similarly, 63 other cheques were issued by the Appellants in favour of Respondent arising out of the same transaction. All the cheques were dishonoured due to insufficient funds.
A statutory demand notice was issued under s.138 of the NI Act against the Appellant and complaints were also filed before the Judicial Magistrate, 1st class. The Court held the Appellant guilty for offences punishable under s.138 of the NI Act and they were accordingly convicted. The Appellants filed an application under s.389 of CrPC for suspension of sentence. The Appellate Court entertained the appeal and suspended the sentence during the pendency of the appeal (subject to furnishing of bail bond and surety bond in the sum of Rs.50,000/- with one surety in the like amount and also subject to deposit of 25% of the amount of compensation awarded by the Trial court in favour of the complainant). The Appellants were directed to deposit the amount within four weeks in the name of the Court. The Appellants preferred an application seeking extension of time to deposit the amount of 25% of the compensation amount. The Sessions Judge allowed the application.
The Appellants filed an application under s.482 CrPC seeking quashing of the order passed by the Appellate Court, whereby the condition to deposit 25% of the amount of compensation was imposed on the Appellant. The HC dismissed the petition of the Appellant and other connected petitions. Thereafter, the Appellant filed a SLP before the SC challenging the order of the HC. The SC dismissed the criminal appeals arising out of the SLPs. Aggrieved by the decision of the HC, the petitioner appealed before the SC.
Meanwhile, the Appellate Court, in view of non-compliance of the order directed the Appellants to surrender in the Trial Court within 4 days. The Appellants were not present when the case was taken up by the Appellate Court. So, a petition was filed under s. 482 of the CrPC challenging the order of the Appellate Court.
Appellant’s contention
The Appellant argued that mere non-deposit of the 25% of the amount of compensation cannot result in revocation of suspension of sentence. Rather it was open to the Respondents to recover the said amount as per the procedures prescribed under Section 421 Cr. P.C.
The Trial Court’s direction to deposit 25% of the compensation could not have been made under s. 148 of the NI Act. The said section could not be relied on since it came into force on 01.09.2018 and the complaint was filed in the year 2015, which was much before the enforcement of s.148 of the NI Act.
Further, the Appellant submitted that s.143A and s. 148 inserted in NI Act by amendment of 2018. Hence s. 148 was not attracted in the present case which was only prospective and could have been utilised in offences which were committed after 01.09.2018.
Respondent’s contention
The Respondents upheld the correctness of the decision passed by the Judicial Magistrate, 1st class, convicting the Appellants punishable under s.138 of the NI Act.
Held
In G.J. Raja v. Tejraj Surana (Criminal Appeal No. 1160 of 2019), the SC held that s. 143A of the NI Act was prospective in nature, and were limited to cases where offences were offences were committed after the introduction of s.143A i.e. after 01.09.2018. The SC while hearing the SLP filed by the Appellant held that considering the Statement of Objects and Reasons of the amendment in s. 148 of the N.I. Act, interpreted the amended s.148 of the Act as 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). The G. J. Raja case cannot be a precedent since the present case was on s.148 which is a stage after conviction and different from the stage in which interim compensation was awarded under s.143A of the NI Act.
The Court held that it depended upon the Appellate Court to take call on non-compliance and take appropriate decision. What order is to be passed in such circumstances depends upon the Appellate Court; however, non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been revoked.
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