Sandeep Kumar vs Lovely on 3 March, 2025

Punjab-Haryana High Court

Sandeep Kumar vs Lovely on 3 March, 2025

                                         Neutral Citation No:=2025:PHHC:030166



CRM-M-2486-2025                                                    Page 1 of 9



           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH
122                                        CRM-M-2486-2025
                                    Date of Decision:
                                            Decision:03.03.2025

Sandeep Kumar                                                        . . . . Petitioner(s)

                                        Vs.
Lovely                                                             . . . . Respondent(s)
                                       ****
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
                                       ****
Present:    Mr. Himanshu Setia, Advocate for
            Mr. Kushager Goyal, Advocate for the petitioner.
                                       ****
SANJAY VASHISTH, J.

1. Present petition has been filed under Section 528 of BNSS, seeking

quashing of impugned order dated 10.09.2024
10.09.2024(P-5)passed
passed by the learned

Additional Sessions Judge, Sirsa, while suspending the sentence of the petitioner,

he was directed to
o deposit 20% of the compensation awarded under Section 148 of

the Negotiable Instruments Act, 1881 (hereinafter ‘NI Act‘), in th
thee cases stemming

from criminal complaint bearing No. NACT No. 1122/2020 dated 18.01.2020,filed
filed

under Section 138 of the NI Act.

2. Briefly, the facts, as alleged, are that the respondent
respondent-complainant
complainant

advanced a friendly loan of Rs.1,50,000/-

Rs.1,50,000/ to petitioner
petitioner-accused
ccused in the month of

November, 2019. Petitioner assured the respondent that the loan amount shall be

repaid by him within a short
short span. To discharge his pre
pre-existing
existing legally enforceable

liability
lity towards complainant, the petitioner issued a cheque bearing No. 000662

dated 04.12.2019 of Rs.1,50,000/-

Rs.1,50,000/ drawn at Central Bank of India, Begu Road

Sirsa Branch duly signed by petitioner in favour of the complainant/respondent. On

1 of 9
::: Downloaded on – 15-03-2025 04:02:08 :::
Neutral Citation No:=2025:PHHC:030166

CRM-M-2486-2025 Page 2 of 9

presentation of abovementioned
above cheque for encashment
encashment, same was dishonored vide

memo dated 06.12.2019, with the remarks-

remarks ‘funds insufficient.’ Thereafter, a

criminal complaint (supra) was filed wherein the petitioner was convicted vide

judgment dated 09.08.2024 by the learned Judicial
Judicial Magistrate First Class, Sirsa

and vide order of sentence dated 13.08.2024,, he was sentenced as follows:

Offence under                             Sentence
Section 138 of          the    Negotiable Simple imprisonment of 01 year and a
Instruments Act                           compensation    to   the   tune    of
                                          Rs.3,00,0
                                          Rs.3,00,000/- (double the cheque
                                          amount), payable to the complainant
                                                                   complainant--
                                          respondent.

Aggrieved by the same, the petitioner preferred an appeal before the learned

lower Appellate Court. The petitioner also filed an application for suspension of

sentence under Section 430 BNSS, which was allowed by learned Court below

vide impugned order dated 10.09.2024, subject to payment of 20% of the

compensation amount awarded to the respondent-complainant.

respondent complainant.

The aforementioned direction in part i.e. ordering for payment of 20% of the

compensation awarded by learned trial Court, within 60
0 days while exercising the

power under Section 148 of the Act of 1881 by learned Appellate Court (where

appeal filed by the petitioner/convict is pending) has been impugned in this

petition filed before
fore this Court.

3. Learned counsel for the petitioner submits that undoubtedly,

Appellate Court is empowered under Section 148 of the Act of 1881 to direct the

payment of 20% of the compensation amount. However, by virtue of judgment of

Hon’ble Apex Court in Jamboo Bhandari v. M.P. State Industrial Development

Corporation Ltd. and others,
others, 2024(1) SCC (Cri) 90
90,as also in the case ofMuskan
Muskan

2 of 9
::: Downloaded on – 15-03-2025 04:02:09 :::
Neutral Citation No:=2025:PHHC:030166

Enterprises and another v. The State of Punjab and another
another,, 2024 SCC Online

SC 4107 : Law Finder Doc Id #2680202′,
#2680202′, issuance of such a direction is directory

in nature and not mandatory. In other words, the Appellate Court has to apply its

judicious mind and thereupon exercising its discretional standard, can reduce or

even entirely waive off the 20% of the amount of the awarded compensat
compensation.

ion.

Undoubtedly, for concluding so, Appellate Court would be required to examine the

circumstances, financial capability and the mitigating circumstances of the accused

i.e. whether such a direction would create unwarranted hardship for the appellant

and deprive him of considering his plea in the appeal on merits.

4. Learned counsel for the petitioner further argues that the impugned

order dated 10.09.2024 passed by the learned Appellate Court is in violation of the

law settled by Hon’ble Supreme Court in
i Jamboo Bhandari‘s case (supra),,

wherein, it has been held that while considering the prayer under Section 389 of

the Cr.P.C. of an appellant who has been convicted for offence under Section 138

of the Act, it is always open for the Appellate Court to con
consider,
sider, whether the

appeal before it, is an exceptional case or not, which warrants grant of suspension

of sentence, but without imposing the condition to deposit 20% of the

fine/compensation amount. And, if the Appellate Court comes to the conclusion

that it is an exceptional case, the reasons for coming to the said conclusion must be

recorded, which is missing in the present case. It is submitted that learned Court

below has not appreciated the facts of the case and other circumstances of the

petitioner, ass per mandate of the Hon’ble Supreme Court in Jamboo Bhandari’s

case (supra).

3 of 9
::: Downloaded on – 15-03-2025 04:02:09 :::
Neutral Citation No:=2025:PHHC:030166

CRM-M-2486-2025 Page 4 of 9

5. After hearing learned counsel for the petitioner and perusing the

record, it is apparent that sentence of the petitioner was suspended by learned

Appellate Court subject to the deposit of 20% of the compensation amount

awarded by learned trial Court. However, petitioner did not comply with the same.

This Court is of the view that dispute raised through the present

petition can be decided in limine and without calling the ot
other
her side here, because

the way this Court intends to dispose of the present petition, no prejudice would be

suffered by the complainant qua his rights.

6. The Hon’ble Apex Court in Jamboo Bahndari‘s case (Supra) and

Muskan Enterprises case (Supra) has laid down certain parameters while

considering Section 148 of the Act for the purpose of interpretation. It has been

held that the object of Section 148 of the Act is not mandatorily to be followed

rather, it is directive and the direction to pay or deposit
deposit 20% of the compensation

amount, which is maximum, is to be passed by the concerned Court after

examining the facts and circumstances of the case before it.

7. In Jamboo Bhandari‘s case (supra), the view taken by the Hon’ble

Apex Court in an earlier
earlie case, i.e. Surinder Singh Deswal v. Virender Gandhi,,

(2019) 11 SCC (Cri) 461′,
461′, has also been discussed, wherein, the object and reason

of the amendment in Section 148 of the Act was discussed. The observations made

in para Nos. 5 to 12 of the judgment in Jamboo Bhandari‘s case (supra) are

reproduced here-below:

below:

“5. The paragraph `8′ of the decision of this Court in the
case of Surinder Singh Deswal Alias Colonel S.S. Deswal and
Others (2019) 11 SCC 341 reads thus: –

“8. Now so far as the submission on behalf of the
appellants that even considering the language used in
section 148 of the NI Act as amended, the

4 of 9
::: Downloaded on – 15-03-2025 04:02:09 :::
Neutral Citation No:=2025:PHHC:030166

CRM-M-2486-2025 Page 5 of 9

appellate court “may” order the appellant to deposit
such sum which shall be a minimum of 20 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 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 NI Act as amended is
concerned, considering the amended section 148 of the
NI Act as a whole to be read with the Statement of
Objects and Reasons of the amending section 148 of the
NI 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. Therefore amended
section 148 of the NI Act confers power upon the
appellate court to pass an order pending aappeal
ppeal to direct
the appellant-accused
accused to deposit the sum which shall not
be less than 20% of the fine or compensation either on
an application filed by the original complainant or even
on the application filed by the appellant
appellant-accused
accused under
section 389 Cr.P.C., 1973 to suspend the sentence. The
aforesaid is required to be construed considering the fact
that as per the amended section 148 of the NI Act,, a
minimum of 20% of the fine or compensation awarded by
the trial court is directed to be deposited and that such
amount is to be deposited within a period of 60 days
from the date of the order, or within such further period
not exceeding 30 days as may be directed by the
appellate court for sufficient cause shown by the
appellant. Therefore, if amended section 148 of the NI
Act is purposively interpreted in section 148 of the NI
Act, but also section 138 of the NI Act. The Negotiable
Instruments Act has been amended from time to time so
as to provide, inter alia, speedy disposal of cases
relating to the offence of the dishonour of cheques. So as
to see that due to delay tactics by the unscrupulous
drawers of the dishonoured cheques due to easy filing of
the appeals and obtaining stay in the proceedings, an
injustice was caused to the payee of a di dishonoured
shonoured
cheque, who has to spend considerable time and
resources in the court proceedings to realise the value of
the cheque and having observed that such delay has
compromised the sanctity of the cheque transactions.
Parliament has thought it fit to ame
amend section 148 of the
NI Act. Therefore, such a purposive interpretation would
be in furtherance of the Objects and Reasons of the
amendment in section 148 of the NI Act and also
section 138 of the NI Act.

6. What is held by this Court iss 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

5 of 9
::: Downloaded on – 15-03-2025 04:02:09 :::
Neutral Citation No:=2025:PHHC:030166

CRM-M-2486-2025 Page 6 of 9

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.

7. Therefore, when Appellate Court considers the prayer under
section 389 of the Cr.P.C., 1973 of an accused who has been convicted
for offence under section 138 of the N.I. Act, it is always open for the
Appellate Court to o consider whether it is an exceptional case which
warrants grant of suspension of sentence without imposing the
condition of deposit of 20% of the fine/compensation amount. As stated
earlier, if the Appellate Court comes to the conclusion that it is an
exceptional case, the reasons for coming to the said conclusion must be
recorded.

8. The submission of the learned counsel appearing for the
original complainant is that neither before the Sessions Court nor
before the High Court , there was a plea made by the appellants that an
exception may be made in these cases and the requirement of deposit or
minimum 20% of the amount be dispensed with. He submits that if such
a prayer was not madee by the appellants, there were no reasons for the
Courts to consider the said plea.

9. We disagree with the above submission. When an accused
applies under section 389 of the Cr.P.C., 1973 for suspension of
sentence, he normally applies for grant of relief of suspension of
sentence without any condition. Therefore, when a blanket order is
sought by the appellants, the Court has to consider whether the case
falls in exception or not.

10. In thesee cases, both the Sessions Courts and the
High Court have proceeded on the erroneous premise that deposit of
minimum 20% amount is an absolute rule which does not accommodate
any exception.

11. The learned counsel appearing for the appellants, at this sta
stage,
ge,
states that the appellants have deposited 20% of the compensation
amount. However, this is the matter to be examined by the High Court .

12. In these circumstances, we set aside the impugned orders of the
High Court and restore the revision petitions ffiled
iled by the appellants
before the High Court . We direct the parties to appear before the
roster Bench of the High Court on 09.10.2023 in the morning to enable
the High Court to fix a date for hearing of the revision petitions. As the
contesting parties are before the Court , it will not be necessary for the
High Court to issue a notice of the date fixed for hearing. The
High Court , after hearing the parties, will consider whether 20% of
the amount is already deposited or not. If the Court comes to the
conclusion
clusion that 20% of the amount is not deposited, the Court will re–
examine the Revision Petitions in the light of what we have observed in
this judgment. Till the disposal of the restored Revision Petitions, the

6 of 9
::: Downloaded on – 15-03-2025 04:02:09 :::
Neutral Citation No:=2025:PHHC:030166

CRM-M-2486-2025 Page 7 of 9

interim order passed by this Court or
ordering suspension of sentence will
continue to operate.”

8. Again, in Muskan Enterprises case (supra), Hon’ble the Apex Court

has noticed certain additional parameters, which are required to be looked into in

such like cases, which reads thus:

“27. We may take the discussion a little forward to emphasize our
point of view. There could arise a case before the
Appellate Court where such court is capable of forming an opinion,
even in course of considering as to what would be the appropriate
quantum of fine or compensationensation to be kept in deposit, that the
impugned conviction and the consequent sentence recorded/imposed by
the trial court is so wholly incorrect and erroneous that it is only a
matter of time for the same to be set aside and that ordering a deposit
would d be unnecessarily burdensome for the appellant. Such firm
opinion could be formed on a plain reading of the order, such as, the
conviction might have been recorded and sentence imposed without
adherence to the mandatory procedural requirements of the N.I. Act
prior to/at the time lodging of the complaint by the complainant
rendering the proceedings vitiated, or the trial court might have
rejected admissible evidence from being led and/or relied on
inadmissible evidence which was permitted to be led, or the
trial court might have recorded an order of conviction which is its ipse
dixit, without any assessment/analysis of the evidence and/or totally
mis-appreciating
appreciating the evidence on record, or the trial court might have
passed an order failing to disclose appli
application
cation of mind and/or sufficient
reasons thereby establishing the link between the appellant and the
offence, alleged and found to be proved, or that the compensation
awarded is so excessive and outrageous that it fails to meet the
proportionality test : all
all that, which would evince an order to be in
defiance of the applicable law and, thus, liable to be labelled as
perverse. These instances, which are merely illustrative and not
exhaustive, may not arise too frequently but its possibility cannot be
completely
ely ruled out. It would amount to a travesty of justice if exercise
of discretion, which is permitted by the legislature and could indeed be
called for in situations such as these pointed out above, or in any other
appropriate situation, is not permitted tto o be exercised by the
Appellate Court by a judicial interpretation of ‘may’ being read as
‘shall’ in sub-section
section (1) of Section 148 and the aggrieved appellant is
compelled to make a deposit of minimum 20% of the fine or
compensation awarded by the trial court , notwithstanding any opinion
that the Appellate Court might have formed at the stage of ordering
deposit as regards invalidity of the conviction and sentence under
challenge on any valid ground. Reading ‘may’ as ‘may’ leads to the text
matching the context
ontext and, therefore, it seems to be just and proper not
to denude the Appellate Court of a limited discretion conferred by the
legislature and that is, exercise of the power of not ordering deposit
altogether albeit in a rare, fit and appropriate case whwhich
ich commends to

7 of 9
::: Downloaded on – 15-03-2025 04:02:09 :::
Neutral Citation No:=2025:PHHC:030166

CRM-M-2486-2025 Page 8 of 9

the Appellate Court as exceptional. While there can be no gainsaying
that normally the discretion of the Appellate Court should lean towards
requiring a deposit to be made with the quantum of such deposit
depending upon the factual situation in every individual case, more so
because an order under challenge does not bear the mark of invalidity
on its forehead, retention of the power of such court not to order any
deposit in a given case (which in its view and for the recorded reasons
is exceptional) and calling for exercise of the discretion to not order
deposit, has to be conceded. If indeed the legislative intent were not to
leave any discretion to the Appellate Court , there is little reason as to
why the legislature did not also uuse ‘shall’ instead of ‘may’ in sub–
section (1). Since the self-same
same section, read as a whole, reveals that
‘may’ has been used twice and ‘shall’ thrice, it must be presumed that
the legislature was well and truly aware of the words used which form
the skin of the language. Reading and understanding the words used by
the legislature in the literal sense does not also result in manifest
absurdity and hence tinkering with the same ought to be avoided at all
costs. We would, therefore, read ‘may’ as ‘may’ and ”shall’
shall’ as ‘shall’,
wherever they are used in Section 148. This is because, the words mean
what they say.

28. In such view of the matter and for the foregoing reasons, we are
unhesitatingly of the view that the impugned order of the
High Court declining to entertain the subsequent petition under Section
482, Cr. PC of the appellants is unsustainable in law. However, we do
not consider the need to remit the matter to the High Court for
consideration of the subsequent petition under Section 482, Cr. PC;
instead, in our view, justice would be sufficiently served if the
Sessions Court re-examines
examines the issue of deposit being required to be
made by the appellants in the light of the law laid down in Jamboo
Bhandari (supra) and the observations made hereinabove.

29. Consequently, the impugned order of the High Court dated 18th
May, 2024 and the Sessions Court’s order dated 17th October, 2022,
stand set aside. The matter is remitted to the Sessions Court to re–
examine the issue of ordering deposit. Whether sufficient gground
round has
been made out by the appellants to persuade the Sessions Court not to
order any deposit is left entirely to its discretion and satisfaction. We
do not express any opinion on the plea that the appellants have sought
to advance before us, lest any party seeks to derive any advantage. All
points are left open.”

9. This Court has already considered the similar plea in CRM-M-10526–

2025, titled as, ‘Ramande
Ramandeep
p Singh v. Manjeet Singh & others (D.O.D.:

24.02.2025),, wherein, the non-speaking
non order of depositing 20% of compensation
compensation,,

which was passed without noticing the directions issue
issued by Hon’ble the Apex

Court in Jamboo Bhandari‘s case (supra) and Muskan Enterprises case

(supra),was
was set aside.

8 of 9
::: Downloaded on – 15-03-2025 04:02:09 :::
Neutral Citation No:=2025:PHHC:030166

CRM-M-2486-2025 Page 9 of 9

10. After examining the impugned order dated 10.09.2024(P-5)) and in

view of the judicial precedents settled by Hon’ble Apex Court in Jamboo

Bhandari‘s case (supra) and Muskan Enterprises‘ case (supra),, without

commenting anything on the merits of the case, the present petition is disposed of

and learned lower
ower Court (Appellate Court) is directed to re
re-examine
examine the case in

view of law laid down by the Hon’ble Apex Court in Jamboo Bhandari‘s case

(supra) and Muskan Enterprises‘ case (supra) and after granting an opportunity to

the petitioner to make submissions
submissions regarding the exceptional circumstances, decide

afresh whether it is an appropriate case that warrants waiver of the requirement of

deposit of 20% of the compensation awarded by learned trial Court.

11. The directions given in the order dated 10.09.2024(P-5)) by learned

Appellate Court to the extent of depositing 20% of compensation, are set aside and

it is also clarified that the order of suspension of sentence would not be disturbed

in any manner and same would be subject to the observations, which are yet to be

made by the Appellate Court while dealing with the provisions of Section 148 of

the Act.

With the aforementioned observations, present petition stands

disposed of.

Let copy of this order be sent to the Lower court, for information and

compliance.

(SANJAY VASHISTH)
03.03.2025 JUDGE
Rashmi

1. Whether speaking/reasoned? Yes/No

2. Whether reportable? Yes/No

9 of 9
::: Downloaded on – 15-03-2025 04:02:09 :::