The Case Brief
Surinder Singh Deswal & Ors.
Virender Gandhi & Anr.
Appellants- Surinder Singh Deswal & Ors.
Respondents- Virender Gandhi & Anr.
- Criminal Appeal No.1160 of 2019 ( G.J Raja vs, Tejraj Surana)
- Ajay Vinodchandra Shah vs. State of Maharashtra,(2019) 4 Mah LJ 705
- CRM-M-29187 of 2019(O&M)(Vivek Sahni & Anr. vs. Kotak Mahindra Bank Ltd.
- The Negotiable Instruments Act, 1881.
- The Code Of Criminal Procedure (Amendment) Act, 2005.
The brief facts of the case giving rise to the appeals are as such Appellant No.1 and 2 are partners of Appellant No.3. Respondent No.1 Virender Gandhi, who was also a partner of the firm retired with respect of memorandum of understanding, a cheque was drawn on Canara Bank and was issued by appellant to the respondent number 1 against the part payment of retirement dues.
Similarly 63 other cheques were issued by the appellants in favor of respondent arising out of the same transaction when Respondent No.1 deposited cheque in his bank the cheque was dishonored and returned with remarks “funds insufficient” other 63 cheques were also dishonored.
Respondent No.1 sent the Statutory demand notice under section 138 of Negotiable Instruments Act,1881 , complaint were filed by Respondent No.1 against appellants under section 138 of the N.I. Act, before the Judicial Magistrate Ist Class, in all 28 complaints were filed.
The complaints were decided by judicial magistrate holding that Appellant No. 1 and 2 guilty for the offence punishable under section 138 of the N.I. Act, who are accordingly convicted.
The Appellants one sentence to undergo imprisonment for a period of 2 years and to pay jointly and severally an amount equal to the amount involved in the present case.
The appellants filed an appeal in the court of session judge, in the appeal an application was filed under section 389 of Cr.P.C. or suspension of the sentence.
The learned trial court has suspended the sentence of the appellants for 30 days. 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 ₹50,000/- with one surety in the like amount and also subject to deposit 25% of the amount of compensation awarded by the learner trial court in favor of the complainant.
The appellants were directed to deposit the amount within 4 weeks by the way of demand draft in the name of the court, they were convicted in all 28 cases.
The appellants preferred an application seeking extension of time to deposit the amount of 25% of the compensation amount it was allowed.the appellant filed an application under section 482 Cr.P.C.
seeking quashing of the part whereby the send court has imposed the condition to deposit 25% of the amount of the compensation while suspending the sentence.
The High Court dismissed the petition of appellants under section 482 Cr.P.C. and other connected petitions.
The appellants preferred SLPs( Special Leave Petition) which was also dismissed in the view of non-compliance of the order learned additional session judge directed the Appellants to surrender in trial court within 4 days they were also not present when the case was taken by the additional session judge.
The appellants are aggrieved by the above mentioned judgement and seek help from the Supreme Court, whether the trail court can direct to deposit 25% of the compensation under section 148 of the N.I.Act ?
Contentions by the Appellants-
- The council for appellants question the order of additional session judge and the judgement of high court and submit that made non-deposit of 25% of the amount of compensation as directed cannot result in vacation of suspension of sentence.
- The council also questions the direction of trial court under section 148 of the N.I.Act.
- The council also said set that since the complaint was filed under section 138 of N.I.Act which was much before the section 148 of N.I.Act came into force.
- Council also submitted that non deposit of 25% of the amount of compensation could not lead to vacation of the order suspending the sentence rather it was open to the respondent to recover the said amount as per the procedures prescribed under section 421 Cr.P.C.
- The council for appellants by giving precedent of case says that it is in prospective and could not have been utilized in offence which were committed before the Act.
The bench of Supreme Court consisting Justice Ashok Bhushan and Justice M.R.Shah unanimously decided that they didn’t find any merit in the submission of appellants, hence the appeals are dismissed andsection 148 of N.I.Act is retrospective in nature.
Rule Of Law-
The 148 of N.I.Act seeks to provide that in an appeal by the drawer against conviction under Section 138 of the NI Act, the appellate court may order the appellant to deposit such sum which a minimum of shall be twenty per cent of the fine or compensation awarded by the trial court.
The law is for the people and if there is a new law passed then ideally it should be applicable to henceforth to all the cases whether they are filed before the implementation of the law or after. It is for the welfare of the people and in the society.
The judgement given by supreme court is very precise and on the good side of law section 148 of N.I.Act was added to prevent the delay tactics of drawer and to ease filing of appeals and obtaining stay which is neither good for the law nor the trade and commerce.