# Gyan Prakash Agrawal Revisionist v. Shri Babu Khan & Anr

- **Citation:** (2020) 1 ILRA 1455
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-11
- **Case number:** Criminal Revision No. 4239 of 2019
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyan-prakash-agrawal-revisionist-v-shri-babu-khan-anr-45231
- **Pages:** 9

## Headnote

Negotiable Instruments Act,
1881
-
Section 148 - Deposit of fine not less than
20% is condition precedent for admission of
appeal.

B. Negotiable Instruments Act, 1881- Section
148
-
Applicability
to
complaint
filed
prior to 1.9.2018-Section 148 of the N.I. Act
can be applied to complaint filed prior to
1.9.2018.

C. Criminal Procedure Code, 1973 -
Section 357(2) - Its Applicability to NI
Act - not applicable in an appeal by the
drawer against conviction under section
138 of Negotiable Instruments Act.

Revisionist challenged the order of Session court
directing the Appellant to deposit 30% of the
amount of fine / compensation pending appeal -
Held - Perfectly justified order. (Para 23)

Criminal Revision dismissed. (E-5)

List of cases cited: -

1.Vipin Kumar Vs St. of UPAIRONLINE 2018 AL
L 4035

## Text

1456 INDIAN LAW REPORTS ALLAHABAD SERIES
of good faith or bad faith may be decided
on conclusion of trial. "

24. Applying above principles, when
I examined the facts of this case, it cannot
be doubted that official duty of Revisionist
was to serve summon upon parties to
whom summons were issued. It was not at
all his duty to make a false endorsement
on the document regarding service and
also forged signature of addressee. The
nature of allegation and charge found
proved against revisionist does not come
within the official duty of Revisionist and
in this regard, I find no manner of doubt
that
Section
197
is
not
attracted.
Therefore, in respect of issue no.2 also I
find no force in the submission.

25. However, whether, as a matter of
fact, act of accused-Revisionist can be said
to be in discharge of official duties or not
require evidence. Therefore, I am not
expressing any final opinion on this
aspect. Even otherwise, this aspect has a
little relevance in the present case for the
reason that accused-revisionist having not
satisfied the category of 'public servant' on
which Section 197(1) Cr.P.C. is applicable
therefore, requirement of sanction in the
case
of
accused-Revisionist
is
an
imaginary issue. I, therefore, reject the
submission
advanced
otherwise
and
answer issue-2 against Revisionist.

26. No other argument has been advanced.

27. Dismissed.

28. Interim order, if any, stands
vacated.
----------
(2020)1ILR 1455

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2019

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Revision No. 4239 of 2019

Gyan Prakash Agrawal ...Revisionist
Versus
Shri Babu Khan & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Vikas Srivastava

Counsel for the Opposite Parties:
A.G.A., Sri Balesh Tripathi, Sri Saumitra
Dwivedi, Sri K.M. Mishra, Sri Jitendra
Kumar Pandey

A.
Negotiable Instruments Act,
1881
-
Section 148 - Deposit of fine not less than
20% is condition precedent for admission of
appeal.

B. Negotiable Instruments Act, 1881- Section
148
-
Applicability
to
complaint
filed
prior to 1.9.2018-Section 148 of the N.I. Act
can be applied to complaint filed prior to
1.9.2018.

C. Criminal Procedure Code, 1973 -
Section 357(2) - Its Applicability to NI
Act - not applicable in an appeal by the
drawer against conviction under section
138 of Negotiable Instruments Act.

Revisionist challenged the order of Session court
directing the Appellant to deposit 30% of the
amount of fine / compensation pending appeal -
Held - Perfectly justified order. (Para 23)

Criminal Revision dismissed. (E-5)

List of cases cited: -

1.Vipin Kumar Vs St. of UPAIRONLINE 2018 AL
L 4035

2. Dilip S. Dhanukar Vs Kotak Mahindra Bank
(2007) 6 SCC 528
1 All. Gyan Prakash Agrawal Vs. Shri Babu Khan & Anr.
1457
3.Surinder SinghDeswal @ Col. S. S. Deswal Vs
 Virender Gandhi AIR 2019 SC 2956

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. This revision has been filed against
the impugned judgment and order dated
23.10.2019 passed by District and Sessions
Judge, Hapur, in Criminal Appeal No. 98 of
2019 and impugned judgment and order
passed by C.J.M./A.C.J.M., Hapur dated
23.9.2019 and order dated 25.9.2019
sentencing the accused appellant in case no.
34 of 2019 previously entered complaint no.
8496/2015 under Section 138 N.I. Act, P.S.-
Hapur Kotwali, District- Hapur whereby the
learned court below convicted and sentenced
1 years simple imprisonment for the offence
under Section 138 N.I. Act and fine of Rs. 1
crore 20 lacs.

2. Heard Sri Mangla Prasad Rai,
learned Senior Advocate assisted by Sri
Vikas Srivastava, learned counsel for the
revisionist, Sri Saumitra Dwivedi, learned
counsel for the opposite party and the
learned A.G.A. for the State.

3. Brief facts of the case are that the
proceedings under Section 138 of the N.I. Act
were initiated against the revisionist with the
allegation that two cheque no. 789636 and
cheque no. 789637 dated 20.7.2014 for a sum of
Rs. 50-50 lacs each was issued by the revisionist,
which has been bounced. Respondent no. 1 filed
complaint case before the A.C.J.M, under
Section 138 N.I. Act. The proceeding of
complaint case has ultimately resulted in order of
conviction awarding of one year simple
imprisonment together with imposition of fine of
Rs. 1crores 20 lacs. The amount of fine to be
appropriated by paying Rs. 1crore 15 lacs to the
complainant (respondent no. 1) and balance of
Rs. 5 lacs to be deposited to the State.

4. Aggrieved by this judgment dated
25.9.2019 the revisionist has preferred an
appeal before Sessions Court. This appeal
has been admitted on 23.10.2019 and the
revisionist has been enlarged on bail under
Section 389 Cr.P.C. Further order has been
passed upon the application filed by the
revisionist
to
stay
the
conviction
order/sentence
awarded
by
learned
Magistrate meanwhile respondent no. 1
also filed the application under Section
148 of the N.I. Act with prayer that whole
fine should not be stayed as mandate given
in Section 148 of the N.I. Act. After
hearing Sessions Court passed the order to
furnish 30% of the fine awarded by the
trial court deposited within 30 days.

5. Learned counsel for the revisionist
filed revision on two grounds the first
ground is to set aside the judgment and
order dated 23.9.2018 passed by ACJM,
Hapur and second prayer is to set aside the
order dated 23.10.2018 passed by Sessions
Court.

6. So far as regards first prayer upon
which the revisionist has challenged the
order dated 25.9.2019 by filing revision
with submission that the judgment under
revision is manifestly erroneous, not
sustainable in law and learned trial court
failed to appreciate the evidence adduced
by the complainant (respondent). It is
further submitted that learned trial court
has passed its judgment without any
relevant and cogent reason. It has further
been submitted that execution of the
cheque has not been proved. He further
prayed to allow the revision and set aside
the impugned judgment and order dated
25.9.2019 passed by ACJM, Hapur. On
perusal of the record it appears that
revisionist
has
already
availed
the
statutory remedy before Sessions Court
1458 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 374 (3) Cr.P.C. by way of
filing an appeal and thus the revisionist
have full opportunity to review or reappreciate the evidence as adduced in trial
court. The appeal is a continuation of the
proceeding only such proceeding where
parties were same and they are adversely
affected by the judgment, then they may
file appeal. As stated above as the
revisionist has already availed opportunity
of appeal before Sessions Court and appeal
is admitted on 23.10.2019 before Sessions
Court and presently appeal is pending
before Sessions Court and every aspects of
the case shall be tested during appeal. So
by way of revision the revisionist cannot
avail the parallel remedy. The revisionist
cannot
challenge
the
legality
or
impropriety of the order passed by the trial
court and therefore, no remedy can be
granted to the revisionist so far as regards
to the first prayer for setting aside the
judgment and order dated 25.9.2019
passed by the trial court..

7. So far as regard the second prayer
by
way
of
revision
is
concerned,
revisionist filed an application under
Section 389 of the Cr. P.C. for suspension
of sentence and releasing him on bail,
during pendency of appeal. Meanwhile,
the respondent (complainant) also filed the
application before Sessions Court with
prayer to comply the provision as
envisaged in Section 148 (i) of the N.I.
Act. By considering the provisions of
amended Section 148 of the N.I. Act,
which has been amended by Amendment
Act No. 20/2018, which came into force
w.e.f. 1.9.2018, the appellate Court, while
suspending the conviction and sentence
under Section 389 of the Cr.P.C. Learned
appellate court directed that the execution
and suspension of conviction of appellant
(revisionist) subject to deposit of 30% of
the amount of compensation/fine awarded
by the learned trial Court.

8. Learned counsel appearing on
behalf of the revisionist vehemently
submitted that in the present case as the
criminal proceedings were initiated and
the complaints were filed against the
accused for the offence under Section 138
of the N.I. Act, prior to the amendment
Act came into force, Section 148 of the
N.I.Act,
as
amended
shall
not
be
applicable. It is further submitted by the
learned Advocate appearing on behalf of
the revisionist that the legal proceedings,
whether civil or criminal, are to be decided
on the basis of the law applicable on the
date of the filing of the suit or alleged
commission of offence by the trial Court
or the appellate Court, unless the law is
amended expressly with retrospective
effect, subject to the provisions of Article
20 (1) of the Constitution of India.

9. It is further submitted by the
learned counsel for the revisionist that as
per Section 357 (2) of the Cr.P.C., no such
fine is payable till the decision of the
appeal. It is submitted that therefore also
the first appellate Court ought not to have
passed any order directing the appellants
to deposit 30% of the amount of
fine/compensation, pending appeal. In
support of his above submission, learned
Counsel has heavily relied upon the
decision of this Court in the case of Vipin
Kumar Vs. State of U.P. AIRONLINE
2018 ALL 4035 in which this Court held
the right of appeal is statutory right
available to accused and that deposit of
such amount cannot be made a condition
precedent for admission of appeal. It has
also been held that ends of justice would
be met if part of the order which directs
furnishing of bank guarantee to the extent
1 All. Gyan Prakash Agrawal Vs. Shri Babu Khan & Anr.
1459
of 25% is modified and substituted with a
direction to furnish personal bond and
security in the form of surety of like
amount to the extent of 25% of the
amount..

10.

Learned
counsel
for
the
revisionist also submitted that once the
appeal is admitted under the provisions
contained under Section 357 (2) of the
Code of Criminal Procedure, there shall be
an automatic stay of the condition to
deposit fine and that the conditions
imposed by the appellate court in that
regard is without jurisdiction.

11.

Learned
counsel
for
the
revisionist placed reliance upon a decision
of Hon'ble Apex Court in that Dilip S.
Dhanukar v. Kotak Mahindra Bank,
reported in (2007) 6 SCC 528. Honble
Apex Court interpreted the provisions of
Section 357 (2) Cr.P.C., which has bee
quoted below:-

"73. i) In a case of this nature,
Sub-Section (2) of Section 357 of the
Code of Criminal Procedure would be
attracted
even
when
Appellant
was
directed to pay compensation;

ii)
The
Appellate
Court,
however, while suspending the sentence,
was entitled to put the appellant on terms.
However, no such term could be put as a
condition precedent for entertaining the
appeal which is a constitutional and
statutory right;

iii) The amount of compensation
must be a reasonable sum;

iv) The Court, while fixing such
amount, must have regard to all relevant
factors including the one referred to in
Sub-Section (5) of 357 of the Code of
Criminal Procedure;

v) No unreasonable amount of
compensation can be directed to be paid.

12. The Hon'ble Apex Court has
clarified that right of appeal is statutory
right available to accused and that deposit
of such amount cannot be made a
condition precedent for admission of
appeal. The Court has further clarified that
appellate court shall be at liberty to put the
appellant to terms which has to be
reasonable and fair. The appellate court
therefore while admitting the appeal and
staying sentence has jurisdiction to put the
apellant to terms which are reasonable and
fair.

13. On account of the above
submission and relying upon the aforesaid
decision learned counsel for the revisionist
prayed to allow the present revision and
further prayed to quash and set aside the
impugned order passed by the appellate
court by which the revisionists have been
directed to deposit 30% of the amount of
the compensation/fine considering the
provisions of Section 148 N.I. Act as
amended.

14.

Learned
counsel
for
the
respondent submitted that contention of
the learned counsel for the revisionist has
no substance. It is submitted that first of
all amendment in Section 148 of the N.I.
Act is procedural in nature and therefore
there is no question of applying the same
retrospectively. It is further submitted that
as such no vested right of the appeal of the
appellants has been taken away or affected
by amendment in Section 148 of the N.I.
Act. It is submitted that in the present case,
admittedly, the appeals were preferred
after the amendment in Section 148 of the
N.I. Act came into force and therefore
Section 148 of the N.I. Act, as amended, is
1460 INDIAN LAW REPORTS ALLAHABAD SERIES
rightly invoked/applied by the learned first
appellate Court. It is submitted that
therefore the amendment so brought in the
Act by insertion of Section 148 of the N.I.
Act is purely procedural in nature and not
substantive and does not affect the vested
rights of the appellants, as such, the same
can have a retrospective effect and can be
applied in the present case also. It is
vehemently
contended
that
after
amendment in Section 148 of the N.I. Act
the provisions of Section 357 (2) Cr.P.C.
shall not be applicable.

15.

Before
arriving
at
any
conclusion, I want to discuss the object
behind the amendment made in Section
148 of the N.I. Act. With the objective of
reducing delay in proceedings pertaining
to dishonour of cheques and to provide
interim relief to the payee in such cases,
the Negotiable Instruments (Amendment)
Bill of 2017 was tabled before the Lok
Sabha. The Central Government has been
receiving several representations from the
public, including the trading community,
relating to the pendency of cheque bounce
cases. The same may be imputed to the
delay tactics adopted by unscrupulous
drawers of dishonoured cheques on
account of the ease of filing of appeals and
obtaining stay on proceedings. As a result
of this, injustice is caused to the payee of a
dishonoured cheque who has to spend
considerable time and resources in court
proceedings to realise the value of the
cheque. Such delays compromise the
sanctity of cheque transactions.

16. As per the Statement of Objects
and Reasons of the Bill of 2017, the
Negotiable Instruments Act of 1881 is
proposed to be amended with a view to
address the issue of undue delay in final
resolution of cheque dishonour cases so as
to provide relief to payees of dishonoured
cheques and to discourage frivolous and
unnecessary litigation which would save
time and money". Further, it is expected
that "the proposed amendments will
strengthen the credibility of cheques and
help trade and commerce in general by
allowing lending institutions, including
banks, to continue to extend financing to
the productive sectors of the economy.

17. In the wake of current scenario,
The Negotiable Instruments (Amendment)
Act, 2018 passed by both the Houses (Lok
Sabha on July 23, 2018; Rajya Sabha on
July 26, 2018; and notified on August 02,
2018) has come as a breather for the
aggrieved Drawees. Non-payment because
of cheque dishonor contribute majorly
towards business inconsistencies leading
not only to an cash flow, but also chain of
inconveniences/incalculable losses forced
upon them involuntarily.

18. Further, delayed justice owing to
lengthy court procedures add to the woes.
Therefore, the Amendment Act aims to
give potency in enforcing quick relief and
to act as a deterrent for future cases by
enhancing credibility of cheques as a
negotiable instrument. Briefly, following
are the key features of the latest 2018
amendment vide the added Sections 143-A
and 148:

(a) Interim compensation to
Drawee up to 20% of the cheque amount
in case of either summary trial or
summons case where the Drawer pleads
not guilty;

(b) In addition to the above
amount, if the Drawer appeals against the
compensation awarded by the trial court to
the Drawee, the appellate court can further
order minimum of 20% of the awarded
1 All. Gyan Prakash Agrawal Vs. Shri Babu Khan & Anr.
1461
amount to be deposited/released to the
Drawee; and

(c) In both (1) and (2), the
amount is to be deposited within 60 days
of the courts order, extendable by another
30 days subject to courts satisfaction.

19. A very pertinent feature of this
interim compensation is that at the courts
discretion it may be also recovered as if it
were a fine under Section 421 of the Code
of Criminal Procedure, 1973 implying that
the courts have the power to issue a
warrant for attachment and sale of any
moveable property belonging to the
offender (Drawer); or issue a warrant to
the District Collector to realise the amount
as arrears of land revenue from the
moveable/immoveable property of the
defaulter (Drawer).

20. Thus, the Drawer of the cheque is
made liable to prosecution and partial
payment upon dishonour of the cheque
implying that the provisions are punitive
as well as compensatory, that is, the
punitive aspect leading to compensation. It
can be ascertained that the Legislature has
made a remarkable move by bringing this
amendment in the interest of speedy
justice.

21. The bill seek to achieve
objective, introduce Amended Section 148
of the N.I. Act is as under:-

''''148.
(1)
Notwithstanding
anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), in
an appeal by the drawer against conviction
under 138 of the N.I. Act, the Appellate
Court may order the appellant to deposit
such sum which shall be a minimum of
twenty
per
cent
of
the
fine
or
compensation awarded by the trial Court:

Provided
that
the
amount
payable under this subsection shall be in
addition to any interim compensation paid
by the appellant under Section 143 A.

(2) The amount referred to in
subsection (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 cause 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.''

22. Every question raised by the
revisionist in revision has already been
settled
by
Hon'ble
Apex
Court
in
Surinder Singh Deswal @ Col. S. S.
Deswal Vs Virender Gandhi AIR 2019
SC 2956, the relevant paragraph nos. 8, 9
and 10 are quoted below:-

"8. It is the case on behalf of the
appellants that as the criminal complaints
against the appellants under Section 138 of
the N.I. Act were lodged/filed before the
amendment Act No. 20/2018 by which
Section 148 of the N.I. Act came to be
amended and therefore amended Section
148 of the N.I. Act shall not be made
applicable. However, it is required to be
1462 INDIAN LAW REPORTS ALLAHABAD SERIES
noted that at the time when the appeals
against the conviction of the appellants for
the offence under Section 138 of the N.I.
Act were preferred, Amendment Act No.
20/2018 amending Section 148 of the N.I.
Act came into force w.e.f. 1.9.2018. Even,
at the time when the appellants submitted
application/s under Section 389 of the
Cr.P.C. to suspend the sentence pending
appeals challenging the conviction and
sentence, amended Section 148 of the N.I.
Act came into force and was brought on
statute
w.e.f.
1.9.2018.
Therefore,
considering the object and purpose of
amendment in Section 148 of the N.I. Act
and while suspending the sentence in
exercise of powers under Section 389 of
the Cr.P.C., 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 N.I. Act.

8.1 Having observed and found
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 N.I. Act was being frustrated,
the Parliament has thought it fit to amend
Section 148 of the N.I. Act, by which the
first appellate Court, in an
appeal
challenging the order of conviction under
Section 138 of the N.I. Act, is conferred
with the power to direct the convicted
accused - appellant to deposit such sum
which shall be a minimum of 20% of the
fine or compensation awarded by the trial
Court. 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. Therefore, submission on behalf
of the appellants that amendment in
Section 148 of the N.I. Act shall not be
made applicable retrospectively and more
particularly
with
respect
to
cases/complaints filed prior to 1.9.2018
shall not be applicable has no substance
and cannot be accepted, as by amendment
in Section 148 of the N.I. Act, no
substantive right of appeal has been taken
away and/or affected.. Therefore the
decisions of this Court in the cases of
Garikapatti Veeraya (supra) and Videocon
International Limited (supra), relied upon
by the learned senior counsel appearing on
behalf of the appellants shall not be
applicable to the facts of the case on hand.
Therefore, considering the Statement of
Objects and Reasons of the amendment in
Section 148 of the N.I. Act stated
hereinabove, on purposive interpretation
of Section 148 of the N.I. Act as amended,
we are of the opinion that 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
138of the N.I. Act were filed prior to
amendment Act No. 20/2018 i.e., prior to
01.09.2018.
If
such
a
purposive
interpretation is not adopted, in that case,
the object and purpose of amendment in
Section 148 of the N.I. Act would be
frustrated. Therefore, as such, no error has
been committed by the learned first
appellate court directing the appellants to
deposit
25%
of
the
amount
of
fine/compensation as imposed by the
learned trial Court considering Section 148
of the N.I. Act, as amended.

9. Now so far as the submission
on behalf of the appellants that even
considering the language used in Section
1 All. Gyan Prakash Agrawal Vs. Shri Babu Khan & Anr.
1463
148 of the N.I. Act as amended, the
appellate Court "may" order the appellant
to deposit such sum which shall be a
minimum
of 20%
of
the
fine
or
compensation awarded by the trial Court
and the word used is not "shall" and
therefore the discretion is vested with the
first appellate court to direct the appellant
- accused to deposit such sum and the
appellate court has construed it as
mandatory, which according to the learned
Senior Advocate for the appellants would
be contrary to the provisions of Section
148 of the N.I. Act as amended is
concerned,
considering
the
amended
Section 148 of the N.I. Act as a whole to
be read 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" and 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. The aforesaid is
required to be construed considering the
fact that as per the amended Section 148 of
the N.I. Act, a minimum of 20% of the
fine or compensation awarded by the trial
court is directed to be deposited and that
such amount is to be deposited within a
period of 60 days from the date of the
order, or within such further period not
exceeding 30 days as may be directed by
the appellate court for sufficient cause
shown by the appellant. 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. Negotiable Instruments Act has been
amended from time to time so as to
provide, inter alia, speedy disposal of
cases relating to the offence of the
dishonoured of cheques. So as to see that
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
resources
in
the
court
proceedings to realise the value of the
cheque and having observed that such
delay has compromised the sanctity of the
cheque transactions, the Parliament has
thought it fit to amend Section 148 of the
N.I. Act. Therefore, such a purposive
interpretation would be in furtherance of
the Objects and Reasons of the amendment
in Section 148 of the N.I. Act and also Sec
138 of the N.I. Act.

10. Now so far as the submission
on behalf of the appellants, relying upon
Section 357 (2) of the Cr.P.C. that once
the appeal against the order of conviction
is preferred, fine is not recoverable
pending appeal and therefore such an order
of deposit of 25% of the fine ought not to
have been passed and in support of the
above reliance placed upon the decision of
this Court in the case of Dilip S.
Dhanukar (supra) is concerned, the
aforesaid has no substance. The opening
word of amended Section 148 of the N.I.
Act is that "notwithstanding anything
contained in the Code of Criminal
Procedure.....". Therefore irrespective of
the provisions of Section 357 (2) of the
1464 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C., pending appeal before the first
appellate court, challenging the order of
conviction and sentence under Section 138
of the N.I. Act, the appellate court is
conferred with the power to direct the
appellant to deposit such sum pending
appeal which shall be a minimum of 20%
of the fine or compensation awarded by
the trial Court."

23. In view of the above and for the
reasons stated above, I am of the view that
applicability
of
the provision
under
Section 148 of the N.I. Act is mandatory.
Deposit of fine not less than 20% is
condition precedent for admission of
appeal and provision under Section 357 (2)
Cr.P.C. are not made applicable during
admissibility and pendency of appeal.
Section 148 of the N.I. Act can be applied
to complaint filed prior to 1.9.2018. I see
no reason to interfere with the impugned
order dated 23.10.2019 passed by the
appellate sessions court directing the
Appellants to deposit 30% of the amount
of fine/compensation pending appeals. The
order of appellate court is perfectly legal.
There is no illegality or perversity in the
order dated 23.10.2019.

24. Revision filed by the revisionist is
devoid of merit and is liable to be dismissed.

25. Revision is dismissed..
----------
(2020)1ILR 1463

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 231 of 2015
Smt. Shashi Bala ...Appellant
Versus
Rajendrapal Singh ...Respondent

Counsel for the Appellant:
Sri Satyender Kumar Singh

Counsel for the Respondent:
Sri Pankaj Agarwal, Sri Tarun Agarwal

A. Family Courts Act, 1984 - Section 19 &
Hindu Marriage Act, 1955 - Section 13(1)
- appellant challenged the decree of
divorce-decree passed on the ground of
desertion-plaintiff
failed
to
establish
commission of physical or mental crueltycourt below made no attempt to find out
why appellant was forced to leave
matrimonial
home-plaintiff
never
discharged his liability towards his wife
and children-for a period of eleven long
years, plaintiff kept quiet-now plaintiff is
stopped from raising this plea-plaintiff
did not made any attempt for restitution
of conjugal rights nor he discharged his
liabilities-it is the plaintiff-husband who
has committed cruelty upon appellantwife-award of cost of Rs. 2 lacs to pe paid
to appellant by plaintiff-suit filed by
plaintiff is dismissed. (Para 7, 22 to 25)

First Appeal allowed. (E-6)

List of cases cited: -

1. Smt. Kavita Sharma Vs. Neeraj Sharma (First
Appeal No. 525 of 2006), para28

2. Ashwani Kumar Kohli Vs. Smt. Anita (First Appeal
No. 792 of 2008) para 7, 8, 10, 11, 12, 13

(Delivered by Hon'ble Rajeev Misra,J.)

1. Present First Appeal under Section
19 of Family Courts Act 1984 (hereinafter
referred to as Act 1984) has been filed by
Appellant i.e. wife challenging judgement
dated
13.03.2015
and
decree
dated
27.03.2015 passed by Principal Judge,
Family Court, Ghaziabad in Suit No. 367