Uttarakhand High Court
9 January vs Sh. Attar Singh on 9 January, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
2025:UHC:355
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc Application No. 950 of 2024
09 January, 2025
Ashok Kumar
--Applicant
Versus
Sh. Attar Singh
--Respondent
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Presence:-
Mr. Karan Anand, learned counsel for the applicant.
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Hon'ble Pankaj Purohit, J. (Oral)
Heard learned counsel for the parties.
2. By means of this C528 application,
applicant has challenged the order dated 13.08.2024
passed by learned 2nd Additional Sessions Judge,
Dehradun in Criminal Appeal No.41 of 2024, Ashok
Kumar Vs. State of Uttarakhand and Others,
whereby the application filed by the applicant i.e. 16
([k) for exempting him for depositing 20% of the
amount of compensation was rejected vide order
dated 14.02.2024.
3. Applicant was convicted under Section 138
of the N.I. Act vide the judgment and order dated
19.01.2024 passed by learned Additional CJM
Dehradun in Complaint Case No.2107 of 2019, Attar
Singh vs. Ashok Kumar and sentenced to undergo
six months’ simple imprisonment with fine of
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Rs.10,90,000/-, with default stipulation of one
month additional simple imprisonment. Thereafter,
applicant preferred a Criminal Appeal No.41 of 2024,
Ashok Kumar vs. Attar Singh & others, wherein
while admitting the appeal vide order dated
14.02.2024, he was directed to deposit 20% of the
compensation i.e. Rs.2,18,000/- within ten days. The
said amount was not deposited. On application
moved by applicant on 20.04.2024, he was given 30
days more time to deposit the 20% of the amount as
stated above, but he failed to deposit the said
amount and moved an application 16 ([k) for
exemption.
4. It is contended by learned counsel for the
applicant that the Appellate Court vide order dated
14.02.2024 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.”
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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 in SLP (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, normally,
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.”
6. It is also contended by learned counsel for
the applicant that applicant was seeking bail under
Section 389 Cr.P.C. and not under the N.I. Act.
7. This argument advanced on behalf of
learned counsel for the applicant is totally fallacious
for the reason that N.I. Act is a Special Act and in
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view of the Special Act, the provisions of Cr.P.C. will
be subject to Section 148 N.I. Act.
8. Having gone through the provisions 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.
9. In view of the foregoing reasons, this Court
is not inclined to interfere in the matter. Accordingly,
C528 application is dismissed in limine, 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.
10. Moreover, the learned appellate court has
got right only to extend the time for 30 days after
expiry of period of 60 days granted by it to deposit the
20% of the minimum amount of compensation at the
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time of admission of the appeal. In this view of the
matter too, learned 2nd Additional Sessions Judge was
justified in passing the order dated 13.08.2024
impugned in the present C528 application saying that
the application 16 ([k) was not maintainable and the
same was rejected.
11. Pending application, if any, stands disposed
of accordingly.
(Pankaj Purohit, J.)
09.01.2025
AK
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