At, High Court of Rajasthan Jaipur Bench
By, THE HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA
For the Appellant: Ram Charan Goutam, Advocate. For the Respondents: F.R. Meena, PP.
1. Learned counsel for the petitioner submits that direction issued by the appellate Court for depositing 20% of the amount as directed by the trial Court is not in accordance with the law as the offence alleged is relating to the period prior to coming into force of the amendment made in Section 143-A of the N.I. Act, 1881.
2. Learned counsel relies on the judgment delivered in the case of Surendra Singh Deswal @ Col. S.S. Deswal & Ors. Versus Virender Gandhi & Anr. in Criminal Appeal No. 1936-1963 of 2019 dated 8.1.2020 to submit that Section 143-A of the N.I. Act is prospective in nature and would be confined to the cases where offence has been committed after introduction of Section 143-A of the N.I. Act.
3. I have considered the submissions as above and find that the petitioner has already been convicted for offence under Section 138 of the N.I. Act vide judgment dated 15.11.2019. He has preferred an appeal before the appellate Court and the learned Sessions Judge No. 5, Jaipur Metro, vide its order dated 12.12.2019 has while invoking power under Section 148 of the N.I. Act has directed the petitioner to deposit 20% of the amount within 16 days failing which the sentence suspension shall stand vacated.
4. In Surender Singh Deswal @ Col. S.S. Deswal & Ors. Versus Virendra Gandhi (Criminal Appeal Nos. 917-944 of 2019) and having considered the provisions of Section 148 of the N.I. Act has held as under:
"15. The judgment of this Court which was delivered in the case of the present appellants i.e. Criminal Appeal Nos. 917-944 of 2019 (Surinder Singh Deswal @ Col. S.S. Deswal and others vs. Virender Gandhi) (in which one of us M.R. Shah, J was also a member) was also cited before the Bench deciding the case of G.J. Raja. This Court in its judgment dated 29.05.2019 has rejected the submission of the appellants that Section 148 of N.I. Act shall not be made applicable retrospectively. This Court held that considering the Statement of Objects and Reasons of the amendment in Section 148 of the N.I. Act, on purposive interpretation of Section 148 of the N.I. Act as amended, shall be 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.
16. The Bench deciding G.J. Raja's case has noticed the judgment of this Court in the appellants' case i.e. Surinder Singh Deswal's case and has opined that the decision of this Court in Surinder Singh Deswal's case was on Section 148 of the N.I. Act which is a stage after conviction of the accused and distinguishable from the stage in which the interim compensation was awarded under Section 143A of the N.I. Act. When the Bench deciding G.J. Raja's case(supra) itself has considered and distinguished the judgment of this Court in appellants' own case i.e. Surinder Singh Deswal's, reliance by the learned counsel for the appellants on the judgment of this Court in G.J. Raja's case is misplaced. It is useful to refer to paragraph 23 of the judgment in G.J. Raja's case which is to the following effect:
"23. We must, however, advert to a decision of this Court in Surinder Singh Deswal and Ors. v. Virender Gandhi, (2019) 8 SCALE 445 where Section 148 of the Act which was also introduced by the same Amendment Act 20 of 2018 from 01.09.2018 was held by this Court to be retrospective in operation. As against Section 143A of the Act which applies at the trial stage that is even before the pronouncement of guilt or order of conviction, Section 148 of the Act applies at the appellate stage where the Accused is already found guilty of the offence Under Section 138 of the Act. It may be stated that there is no provision in Section 148 of the Act which is similar to Sub-Section (5) of Section 143A of the Act. However, as a matter of fact, no such provision akin to Sub-section (5) of Section 143A was required as Sections 421 and 357 of the Code, which apply post-conviction, are adequate to take care of such requirements. In that sense said Section 148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the Act."
Therefore, the decision of this Court in Surinder Singh Deswal (2007) 13 SCC 492 stands on a different footing." In view of the above, the judgment of this Court in the case of G.J. Raja does not help the appellants.
17. The judgment of Punjab and Haryana High Court in Vivek Sahni and another(supra) which has been relied by the learned counsel for the appellants has been noted and elaborately considered by the High Court in the impugned judgment. In paragraph 14 and 15 of the impugned judgment of the High Court reasons have been given for distinguishing the Vivek Sahni' case.
18. The High Court is right in its opinion that question No. 2 as framed in Vivek Sahni's case was not correctly considered. When suspension of sentence by the trial court is granted on a condition, non-compliance of the condition has adverse effect on the continuance of suspension of sentence. The Court which has suspended the sentence on a condition, after noticing non-compliance of the condition can very well hold that the suspension of sentence stands vacated due to non-compliance. The order of the Additional Sessions Judge declaring that due to non-compliance of condition of deposit of 25% of the amount of compensation, suspension of sentence stands vacated is well within the jurisdiction of the Sessions Court and no error has been committed by the Additional Sessions Judge in passing the order dated 20.07.2019.
19. It is for the Appellate Court who has granted suspension of sentence to take call on non-compliance and take appropriate decision. What order is to be passed by the Appellate Court in such circumstances is for the Appellate Court to consider and decide. However, non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated.
20. Insofar as the judgment of the Bombay High Court in Ajay Vinodchandra Shah (supra) which has been relied by the learned counsel for the appellant, it is sufficient to observe that the High Court did not have benefit of judgment of this Court dated 29.05.2019 in Surinder Singh Deswal's case. The judgment of the Bombay High Court was delivered on 14.03.2019 whereas judgment of this Court in appellants' case is dated 29.05.2019. In view of the law laid down by this Court in Surinder Singh Deswal's case decided on 29.05.2019, the judgment of Bombay High Court in Ajay Vinodchandra Shah's case cannot be said to be a good law insofar as consequences of non-compliance of condition of suspension of sentence is concerned.
21. It is further to note that even Bombay High Cour
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t while modifying the direction to deposit 25% of the amount of total compensation directed the accused to deposit 20% of the amount of compensation within 90 days." 5. Keeping in view above, it is thus apparent that after an appeal has been preferred after introduction of Section 148 of the N.I. Act i.e. 16.8.2018, the power of appellate Court to order the payment pending appeal shall be available after 16.8.2018. Since the present appeal has been preferred after the introduction of Section 148 under the N.I. Act, the appellate Court has rightly directed for depositing 20% of the amount as a pre-deposit and as a condition for suspension of sentence. No interference in the order dated 12.12.2019 is made out. The criminal misc. petition is accordingly dismissed.