SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND OTHERS versus VIRENDER GANDHI

Citation: [2019] 8 S.C.R. 746 · Decided: 29-05-2019 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Dismissed

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 8 S.C.R.
SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND
OTHERS
v.
VIRENDER GANDHI
(Criminal Appeal Nos. 917-944 of 2019)
MAY 29, 2019
[M. R. SHAH AND A. S. BOPANNA, JJ.]
Negotiable Instruments Act, 1881: ss.138, 148 – Deposit of
fine or compensation for suspension of sentence – Whether s.148
as amended by Act no.20/2018 shall not be applicable with respect
to criminal proceedings already initiated prior to the amendment to
s.148 of NI Act – Held: s.148 as amended, shall be applicable in
respect of the appeals against the order of conviction and sentence
for the offence under s.138, even in a case where the criminal
complaints for the offence under s.138 were filed prior to amendment
Act No. 20/2018 i.e., prior to 01.09.2018 – By the amendment in
s.148, it cannot be said that any vested right of appeal of the accused
was taken away and/or affected – Therefore, submission  that
amendment in s.148 shall not be made applicable retrospectively,
more particularly with respect to cases/complaints filed prior to
1.9.2018, has no substance as by amendment in s.148, no
substantive right of appeal was taken away and/or affected –
However, in the peculiar facts and circumstances of the instant case
and the fact that the accused-appellants were  bonafidely litigating
their case and the amount required to be deposited was huge, by
exercising powers under Art.142 of the Constitution, the appellants
is granted four weeks to deposit the amount as was directed by the
first appellate court – Retrospective effect – Code of Criminal
Procedure, 1973 – s.389 – Constitution of India – Art.142.
Negotiable Instruments Act, 1881: s.148 – Amendment Act
No.20/2018 – Legislative intent – Delay tactics of unscrupulous
drawers of dishonoured cheques resulted in frustrating the object
and purpose of the enactment of s.138 – For this reason Parliament
thought it fit to amend s.148 by which the first appellate Court, in
an appeal challenging the order of conviction under s.138 was
conferred with the power to direct the convicted accused-appellant
   [2019] 8 S.C.R. 746
746
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to deposit such sum which shall be a minimum of 20% of the fine or
compensation awarded by the trial Court – Interpretation of statutes
– Purposive interpretation – Legislative Intent.
Dismissing the appeals, the Court
HELD: 1. By the amendment in Section 148 of the N.I.
Act, it cannot be said that any vested right of appeal of the
accused-appellant has been taken away and/or affected.
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, 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 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.  [Para 8.1] [757-D, G-H]
2. When the amended Section 148 of the N.I. Act as a whole
is considered with the Statement of Objects and Reasons of the
amending Section 148 of the N.I. Act, though it is true that in
amended Section 148 of the N.I. Act, the word used is “may”, it
is generally to be construed as a “rule” or “shall”. While not to
direct to deposit by the appellate court is an exception for which
special reasons are to be assigned. Therefore amended Section
148 of the N.I. Act confers power upon the Appellate Court to
pass an order  pending appeal to direct the Appellant-Accused to
deposit the sum which shall not be less than 20% of the fine or
compensation either on an application filed by the original
complainant or even on the application filed by the Appellant-
Accused under Section 389 of the Cr.P.C. to suspend the
sentence.  Therefore, if amended Section 148 of the N.I. Act is
purposively interpreted in such a manner it would serve the
Objects and Reasons of not only amendment in Section 148 of
the N.I. Act, but also Section 138 of the N.I. Act.  Due to delay
tactics by the unscrupulous drawers of the dishonoured cheques
due to easy filing of the appeals and obtaining stay in the
proceedings, an injustice was caused to the payee of a
dishonoured cheque who has to spend considerable time and
SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND
OTHERS v. VIRENDER GANDHI
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SUPREME COURT REPORTS
[2019] 8 S.C.R.
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