Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
At this stage, we may note Sub-section (1) of Section 148. Section 148 reads thus:
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.
Sub-section (1) of Section 148 confers on the Appellate Court a power to direct the Appellant/Accused to deposit 20 per cent of the compensation amount. It operates at a different level as the power thereunder can be exercised only after the Appellant/Accused is convicted after a full trial. {Para 13}
14. In the case of Section 143A, the power can be exercised even before the Accused is held guilty. Sub-section (1) of Section 143A provides for passing a drastic order for payment of interim compensation against the Accused in a complaint Under Section 138, even before any adjudication is made on the guilt of the Accused. The power can be exercised at the threshold even before the evidence is recorded. If the word 'may' is interpreted as 'shall', it will have drastic consequences as in every complaint Under Section 138, the Accused will have to pay interim compensation up to 20 per cent of the cheque amount. Such an interpretation will be unjust and contrary to the well-settled concept of fairness and justice. If such an interpretation is made, the provision may expose itself to the vice of manifest arbitrariness. The provision can be held to be violative of Article 14 of the Constitution. In a sense, Sub-section (1) of Section 143A provides for penalising an Accused even before his guilt is established. Considering the drastic consequences of exercising the power Under Section 143A and that also before the finding of the guilt is recorded in the trial, the word "may" used in the provision cannot be construed as "shall". The provision will have to be held as a directory and not mandatory. Hence, we have no manner of doubt that the word "may" used in Section 143A, cannot be construed or interpreted as "shall". Therefore, the power Under Sub-section (1) of Section 143A is discretionary.
15. Even Sub-section (1) of Section 148 uses the word "may". In the case of Surinder Singh Deswal v. Virender Gandhi MANU/SC/0793/2019 : 2019:INSC:688 : 2019:INSC:688 : (2019) 11 SCC 341, this Court, after considering the provisions of Section 148, held that the word "may" used therein will have to be generally construed as "rule" or "shall". It was further observed that when the Appellate Court decides not to direct the deposit by the Accused, it must record the reasons. After considering the said decision in the case of Surinder Singh Deswal MANU/SC/0793/2019 : 2019:INSC:688 : 2019:INSC:688 : (2019) 11 SCC 341, this Court, in the case of Jamboo Bhandari v. Madhya Pradesh State Industrial Development Corporation Limited and Ors. MANU/SC/1005/2023 : 2023:INSC:822 : (2023) 10 SCC 446, in paragraph 6, held thus:
6. What is held by this Court is that a purposive interpretation should be made of Section 148 NI Act. Hence, normally, the 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.
(Emphasis added)
15.1. As held earlier, Section 143A can be invoked before the conviction of the Accused, and therefore, the word "may" used therein can never be construed as "shall". The tests applicable for the exercise of jurisdiction Under Sub-section (1) of Section 148 can never apply to the exercise of jurisdiction Under Sub-section (1) of Section 143A of the N.I. Act.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 741 of 2024
Decided On: 15.03.2024
Rakesh Ranjan Shrivastava Vs. The State of Jharkhand and Ors.
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.
Author: Abhay Shreeniwas Oka, J.
Citation: MANU/SC/0204/2024,2024 SCC OnLine SC 309.
