Criminal Law, Cheque Dishonour under S.138 of Negotiable Instruments Act, 1881 and effect of Amendment Act, 2018

Criminal Law, Cheque Dishonour under S.138 of Negotiable Instruments Act, 1881 and effect of Amendment Act, 2018 - Object and Aim of S.148 of N.I.Act, 1881 - Vested Right of Accused and impact of S.148  - Final Disposal of Appeal and Requirement of Deposit - Scope of interference under Article 227 of Constitution of India - Interference by High Court in Order passed by ASJ

The case of Nurallah Kamruddin Veljee v Farid Veljee [2019] GCtR 6466 (Goa, Bombay) has noted important issues touching S.148 of Negotiable Instruments Act, 1881. It was pointed out that Amendment Act No.20/2018 amending Section 148 of the N.I. Act came into force with effect from 01/09/2018. Considering the object and purpose of amendment in Section 148 of the Act and while suspending the sentence in exercise of powers under Section 389 of the Code of Criminal Procedure, 1973, when the first appellate Court directed the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned Trial Court, the same can be said to be absolutely in consonance with the Statement of Objects and Reasons of amendment in Section 148 of the Act. It is specifically observed that because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of the enactment of Section 138 of the Act was being frustrated, the Parliament has therefore suitably amended Section 148 of the Act conferring power upon the Appellate Court to direct the convict accused/appellant to deposit such sum which shall be a minimum of 20% of the compensation defined or awarded by the Trial Court. It is apparent that vested right of the convict to prefer an appeal has not been affected by the said amendment.

It is difficult to accept the argument that accused has been denied an opportunity to satisfy the learned Additional Sessions Court as to how the petitioner's case would come within the exceptions, in a situation where the order indicates not only an opportunity to hear the petitioner's Counsel was given, but the learned Appellate Court has also perused the appeal memo as well as the judgment and order of the Trial Court. Merely because the record and proceedings of the Trial Court were not before the Appellate Court at the time of passing the  order would not prohibit the Court from passing an order after giving a full hearing to the learned Counsel at the time of suspending the sentence. The petitioner-accused cannot, as of right, contend that he is not liable to deposit any amount pending the hearing and final disposal of the appeal. Such argument would be against the very spirit and object of Section 148 of the Negotiable Instruments Act. 

In the application for suspension of sentence, the accused has not shown any exceptional circumstances which would weigh upon the Court to assign special reasons. There is, in fact, no miscarriage of justice and therefore there is no question of exercising inherent jurisdiction by High Court.

While dealing with powers under A.227 of Constitution of India in matters related to Negotiable Instruments Act, 1881 it was stated that "such powers of judicial superintendence have to be exercised sparingly and only to keep the subordinate courts within the bounds of their authority. It is not an appellate or revisional power but a supervisory power."