HIGH COURT OF ANDHRA PRADESH
MONDAY ,THE EIGHTH DAY OF JANUARY
TWO THOUSAND AND TWENTY FOUR
PRSENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
CRIMINAL PETITION NO: 3048 OF 2023
Between:
1. Inaganti Gandhi, S/o Sambasiva Rao, Hindu, aged about 61 years,
R/o AppikatlaVillage, Bapatla Mandal, Guntur District.
...PETITIONER(S)
AND:
1. Mullapati Malkondaiah, S/o Rangaiah, Hindu, aged about 68 years,
R/o Chinna Pavani, Lingasamudram Mandal, Prakasam District.
2. The State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of
A.P. At Amaravathi, Guntur District.
...RESPONDENTS
Counsel for the Petitioner(s): NARASIMHA RAO GUDISEVA
Counsel for the Respondents: ANCHA PANDURANGA RAO
The Court made the following: ORDER
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THE HONBLE Ms. JUSTICE B.S.BHANUMATHI
Criminal Petition No. 3048 of 2023
ORDER:
This criminal petition under Section 482 CrPC is filed to quash
the order, dated 27.03.2023, passed in Crl.M.P.No.22 of 2023 in
Criminal Appeal No.66 of 2023 on the file of the Court of IV
Additional Sessions Judge, at Nellore.
2. Heard Sri Narasimha Rao Gudiseva, learned counsel for the
petitioner and Sri Ancha Panduranga Rao, learned counsel for the
1
st respondent/complainant.
3. The facts leading to filing of the petition, are briefly as
follows:
The petitioner is the accused in C.C.No.402 of 2017 on the file
of the Court of II Additional Judicial First Class Magistrate, Nellore,
filed by the 1st respondent herein under Section 138 of the
Negotiable Instruments Act, 1881. Pending the case, the accused
filed petition in Crl.M.P.No.135 of 2022 to send exhibits P1 to P5,
cheques, to a handwriting expert for opinion. The petition was
dismissed by order, dated 16.12.2022. Aggrieved by the order, the
accused preferred criminal revision in C.R.P.No.3 of 2023 on the file
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of the Court of IV Additional Sessions Judge, Nellore. The petition
was dismissed on 20.02.2023.
4. Aggrieved by the said order, criminal petition in Crl. Petition
No.1504 of 2023 was filed before this Court. An interim order was
passed by this Court on 27.02.2023 granting stay of all further
proceedings including appearance of the petitioner before the trial
Court in C.C.No.402 of 2017 for a period of eight (8) weeks.
According to the petitioner/accused, the said order was informed to
the trial Court and a memo was filed on 01.03.2023 along with
‘online daily status information’ which indicated in column of ‘Short
Order’ – 01 Notice stay’. On the said memo, the trial Court passed
an order on 01.03.2023 which reads as follows:
“Heard both sides. Perused the record. The matter in
C.C.No.402/2017 was posted for judgment on 25-01-2023, but
this Court received official memo on 24-01-2023 from the
Hon’ble IV Additional District & Sessions Court, Nellore asked
entire record in Crl.M.P.No.135/2022 in this case. Hence, this
Court not pronounced judgment and posted time to time.
Finally, this Court received record on 27-02-2023 and posted
today for judgment as the matter is of 2017. On perusing the
memo filed by the petitioner/accused that he preferred revision,
but no stay granted by Hon’ble High Court of A.P., hence this
Court felt that it is not necessary to stop the proceedings and
inclined to go further. Accordingly, the memo is closed/
answered in the interest of justice.”
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5. In spite of information regarding the stay granted by this
Court, the trial Court pronounced the judgment on 01.03.2023 by
convicting the petitioner. Hence, the accused preferred an appeal,
vide Criminal Appeal No.66 of 2023 along with which he also filed
Crl.M.P.No.22 of 2023 seeking to suspend the operation of the
sentence imposed in C.C.No.402 of 2017. The appellate Court, vide
order dated 27.03.2023, suspended the operation of the sentence
alone subject to condition of depositing 20% of Rs.70,00,000/- on
or before 27.04.2023.
6. Aggrieved by the condition to deposit 20% of the amount, the
petitioner/accused filed this petition contending that the said
condition is onerous and it ought not to have been ordered.
7. The learned counsel for the petitioner submitted mainly that
the condition to deposit is not mandatory and is discretionary as can
be seen from the language of Section 148 of the Negotiable
Instruments Act and it is only if the Court decides to impose such
condition, the minimum amount to be ordered for deposit is 20%,
but the appellate Court failed to exercise its discretion in the light of
the facts and circumstances in this case, because the judgment of
the trial Court is unsustainable in view of the order of stay granted
by this Court.
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8. On the other hand, the learned counsel for the 1st respondent
submitted that a judgment passed in the absence of communication
of the order of stay is valid and placed reliance on the decision in
Seva Singh Vs. State1
. He further submitted that there is no
communication of order of stay in the present case as is evident
from the order on the memo and therefore, the appellate Court is
not in error in directing to deposit 20% of the compensation
amount.
9. Since this petition is against the order directing deposit of the
amount by exercising jurisdiction under Section 148 of the
Negotiable Instruments Act, this Court is not inclined to examine
the prayer whether the judgment passed by the trial Court is legal
or not.
10. Section 148 of the Negotiable Instruments Act, 1881 reads as
under:
“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 percent
of the fine or compensation awarded by the trial Court.
1
[1953] THE INDIAN LAW REPORTS 206
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Provided that the amount payable under this subsection 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 case 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.”
11. A perusal of the above provision in Section 148(1) indicates
that it is the discretion of a Court in appeal to direct deposit of the
amount since the word ‘may’ is used before the words ‘order the
appellant to deposit’ and it is only if it decides to direct deposit of
the amount, it is mandatory to direct 20% of the compensation
amount. Whenever a court exercises discretion, reasons for the
decision taken shall be recorded. Therefore, before passing any
order under Section 148 of the Negotiable Instruments Act, the
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appellate Court is required to indicate the reasons for exercise of its
discretion.
12. In the present case, since there is a serious dispute about the
legality of the judgment passed by the trial Court while the order of
stay was in force and the same is yet to be decided, the appellate
Court is expected to give reasons as to why in spite of such ground
taken in appeal, it is required to deposit the amount under Section
148 of the Act. But, the appellate Court in its brief order, merely by
referring to Section 148(1) of the Act, directed the petitioner to
deposit 20% of the compensation amount ordered by the trial
Court. It is pertinent to mention the relevant portion of the order at
paragraphs No.6 & 7 which are as follows:
“6. In view of Amendment of Negotiable Instruments
(Amendment) Act, 2018 (No.20 of 2018), dated 2.8.2018,
Negotiable Instruments (Amendment) Act, 2015 (Act No.26 of
2015) (w.e.f 15.6.2015) under Section 148(1), Appellate Court
has power to order payment pending appeal against conviction,
since section reads “Not withstanding anything contained in the
Code of Criminal Procedure, 1973, in an appeal by the drawer
against conviction under Section 138, appellate Court may order
appellant to deposit such sum which shall be a minimum of
twenty percent of the fine or compensation awarded by the trial
Court.” Considering the same, sentence alone imposed by trial
Court is suspended.
7. In the result, petition is allowed by suspending the
operation of sentence alone till disposal of the main appeal as
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imposed by the trial Court subject to deposit of 20% of the
compensation amount into trial Court i.e.,20% out of
Rs.70,00,000/- on or before 27-04-2023. Failing which, the
appellate Court will proceed as per law. “
13. Therefore, it is apparent that the appellate Court has failed to
give reasons in support of its order and probably under the
impression that it is mandatory to direct deposit of amount, passed
the impugned order. Time and again, the Constitutional courts
held that giving reasons is the backbone of an order for its
sustenance. Yet, there are many instances where Courts fail to
record reasons making the order under challenge vulnerable for
interference.
14. As such, for the above reasons, the impugned order needs to
be set aside directing the appellate Court to dispose of the petition
afresh.
15. In the result, the Criminal Petition is allowed. The order,
dated 27.03.2023, passed in Crl.M.P.No.22 of 2023 in Criminal
Appeal No.66 of 2023 is set aside and the appellate Court is
directed to dispose of the petition afresh giving reasons.
Pending miscellaneous petitions, if any, shall stand closed.
__________________
B.S.BHANUMATHI, J
08-01-2024
RAR
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