# SURINDER SINGH DESWAL @ COL. S. S. DESWAL & ORS v. VIRENDER GANDHI & ANR

- **Citation:** [2020] 1 S.C.R. 395
- **Court:** Supreme Court of India
- **Decided:** 2020-01-08
- **Case number:** Criminal Appeal Nos. 1936-1963 of 2019
- **Bench:** Ashok Bhushan, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/surinder-singh-deswal-col-s-s-deswal-ors-v-virender-gandhi-anr-34177
- **Pages:** 13

## Headnote

Negotiable Instruments Act, 1881 - s.s. 138, 143-A and 148
- Code of Criminal Procedure,1973 - s.s. 389, 482 - Respondent
No.1 retired from a firm - Various cheques were issued by the
appellants in favour of respondent against the retirement dues - All
the cheques were dishonored - Complaints were filed by the
respondent No.1 against the appellants u/s. 138 N.I. Act - Judicial
Magistrate held appellants Nos. 1 & 2 guilty and were accordingly
convicted - In appeal, appellants filed application u/s. 389 Cr.P.C.
for suspension of sentence - The Appellate Court vide order dated
01.12.2018 suspended the sentence during the pendency of the
appeal, subject to furnishing of bail and also subject to deposit of
25% of the amount of compensation awarded - Appellants were
convicted and was ordered by the Appellate Court to deposit amount
of Rs.9,40,24,999/- - Appellants filed application u/s.482 Cr.P.C.
and sought quashing of part of the order which imposed a condition
to deposit 25% of the amount of compensation - The High Court
dismissed the petition filed u/s. 482 Cr.P.C. - The Supreme Court
also dismissed the criminal appeals - The Appellate Court vide order
dated 20.07.2019 held that appellant having not complied with the
direction to deposit 25% of the amount of compensation, the order
of suspension of sentence shall be deemed to have been vacated -
Another petition u/s. 482 Cr.P.C. filed by the appellants against the
order dated 20.07.2019 was also dismissed - On appeal held: The
order dated 01.12.2018 was upheld by the Supreme Court, therefore
any submission questioning the order of the Appellate Court directing
the suspension of the sentence subject to deposit of 25% of the
compensation amount needs no further consideration - 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
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the Appellate Court to consider and decide - However, noncompliance of the condition of suspension of sentence is sufficient
to declare suspension of sentence as having vacated - The Appellate
Court was right in taking the view that order of suspension of
sentence shall be deemed to have been vacated.
Dismissing the appeals, the Court
HELD : 1. The Supreme Court having already upheld the
order of the Appellate Court dated 01.12.2018 suspending the
sentence subject to deposit 25% of the amount of compensation
any submission questioning the order of the Appellate Court
directing the suspension of sentence subject to deposit of 25%
of the compensation amount needs no further consideration. By
dismissal of the criminal appeals of the appellants on 29.05.2019
by this Court the challenge stands repelled and cannot be allowed
to be reopened. [Para 12] [404-C]
2. The second round of litigation which was initiated by the
appellant by filing application under Section 482 Cr.P.C. was
against the order dated 20.07.2019 passed by the Additional
Sessions Judge by which he held that the appellant having not
complied with the direction dated 01.12.2018 to deposit 25% of
the amount of compensation, the order of suspension of sentence
shall be deemed to have been vacated. The order dated 20.07.2019
was an order passed by the Additional Sessions Judge on account
of failure of the appellant to deposit 25% of the amount of
compensation. The suspension of sentence on 01.12.2018 was
subject to the condition of deposit of 25% of the amount of
compensation, when the condition for suspension of sentence
was not complied with, Additional Sessions Judge was right in
taking the view that order of suspension of sentence shall be
deemed to have been vacated. Challenge to order dated
20.07.2019 has rightly been repelled by the High Court by its
elaborate and well considered judgment dated 10.09.2019.
[Para 13] [404-D-F]
3. The High Court is right

## Text

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SURINDER SINGH DESWAL @ COL. S. S. DESWAL & ORS.
v.
VIRENDER GANDHI & ANR.
(Criminal Appeal Nos. 1936-1963 of 2019)
JANUARY 08, 2020
[ASHOK BHUSHAN AND M. R. SHAH, JJ.]
Negotiable Instruments Act, 1881 - s.s. 138, 143-A and 148
- Code of Criminal Procedure,1973 - s.s. 389, 482 - Respondent
No.1 retired from a firm - Various cheques were issued by the
appellants in favour of respondent against the retirement dues - All
the cheques were dishonored - Complaints were filed by the
respondent No.1 against the appellants u/s. 138 N.I. Act - Judicial
Magistrate held appellants Nos. 1 & 2 guilty and were accordingly
convicted - In appeal, appellants filed application u/s. 389 Cr.P.C.
for suspension of sentence - The Appellate Court vide order dated
01.12.2018 suspended the sentence during the pendency of the
appeal, subject to furnishing of bail and also subject to deposit of
25% of the amount of compensation awarded - Appellants were
convicted and was ordered by the Appellate Court to deposit amount
of Rs.9,40,24,999/- - Appellants filed application u/s.482 Cr.P.C.
and sought quashing of part of the order which imposed a condition
to deposit 25% of the amount of compensation - The High Court
dismissed the petition filed u/s. 482 Cr.P.C. - The Supreme Court
also dismissed the criminal appeals - The Appellate Court vide order
dated 20.07.2019 held that appellant having not complied with the
direction to deposit 25% of the amount of compensation, the order
of suspension of sentence shall be deemed to have been vacated -
Another petition u/s. 482 Cr.P.C. filed by the appellants against the
order dated 20.07.2019 was also dismissed - On appeal held: The
order dated 01.12.2018 was upheld by the Supreme Court, therefore
any submission questioning the order of the Appellate Court directing
the suspension of the sentence subject to deposit of 25% of the
compensation amount needs no further consideration - 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
 [2020] 1 S.C.R. 395
395
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the Appellate Court to consider and decide - However, noncompliance of the condition of suspension of sentence is sufficient
to declare suspension of sentence as having vacated - The Appellate
Court was right in taking the view that order of suspension of
sentence shall be deemed to have been vacated.
Dismissing the appeals, the Court
HELD : 1. The Supreme Court having already upheld the
order of the Appellate Court dated 01.12.2018 suspending the
sentence subject to deposit 25% of the amount of compensation
any submission questioning the order of the Appellate Court
directing the suspension of sentence subject to deposit of 25%
of the compensation amount needs no further consideration. By
dismissal of the criminal appeals of the appellants on 29.05.2019
by this Court the challenge stands repelled and cannot be allowed
to be reopened. [Para 12] [404-C]
2. The second round of litigation which was initiated by the
appellant by filing application under Section 482 Cr.P.C. was
against the order dated 20.07.2019 passed by the Additional
Sessions Judge by which he held that the appellant having not
complied with the direction dated 01.12.2018 to deposit 25% of
the amount of compensation, the order of suspension of sentence
shall be deemed to have been vacated. The order dated 20.07.2019
was an order passed by the Additional Sessions Judge on account
of failure of the appellant to deposit 25% of the amount of
compensation. The suspension of sentence on 01.12.2018 was
subject to the condition of deposit of 25% of the amount of
compensation, when the condition for suspension of sentence
was not complied with, Additional Sessions Judge was right in
taking the view that order of suspension of sentence shall be
deemed to have been vacated. Challenge to order dated
20.07.2019 has rightly been repelled by the High Court by its
elaborate and well considered judgment dated 10.09.2019.
[Para 13] [404-D-F]
3. 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
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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 noncompliance 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 noncompliance 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. [Para 18] [406-G-H; 407-A]
4. 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. [Para 19] [407-B]
G.J. Raja v. Tejraj Surana (2019) 10 SCALE 168;
Surinder Singh Deswal @ Col. S.S. Deswal and others
v. Virender Gandhi (2019) 11 SCC 341 - referred to.
Ajay Vinodchandra Shah v. State of Maharashtra
(2019) 4 Mah LJ 705 ; Vivek Sahni and another v.
Kotak Mahindra Bank Ltd. CRM-M-29187 of 2019
(O&M) - referred to.
Case Law Reference
(2019) 10 SCALE 168
referred to
Para 9
(2019) 11 SCC 341
referred to
Para 15
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1936-1963 of 2019.
From the Judgment and Order dated 10.09.2019 of the High Court
of Punjab and Haryana at Chandigarh in CRM-M Nos. 37243, 37249,
37250, 37257, 37259, 37434, 37442, 37445, 37446, 37448, 37450, 37451,
37463, 37466, 37474, 37477, 37495, 37497, 37498, 37503, 37533, 37534,
37536, 37537, 37545, 37547 & 37550 of 2019 (O&M).
SURINDER SINGH DESWAL @ COL. S.S. DESWAL v.
VIRENDER GANDHI
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Balbir Singh, Sr. Adv., Ajay Marwah, Advs. for the Appellants.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. These appeals have been filed against a common judgment of
the Punjab and Haryana High Court dated 10.09.2019 dismissing 28
petitions filed by the appellants under Section 482 of Cr.P.C.
2. Brief facts of the case giving rise to these appeals are:
Appellant Nos. 1 and 2 are partners of appellant No.3, M/s. Bhoomi
Infrastructure Co., now known as GLM Infratech Private Limited.
Respondent No.1, Virender Gandhi, who was also a partner of the Firm
retired with respect of which Memorandum of Understanding dated
30.11.2013 was entered into. A cheque No.665643 dated 31.03.2014
drawn on Canara Bank amounting to Rs.45,84,915/- was issued by the
appellant to respondent No.1 against the part payment of the retirement
dues. Similarly, 63 other cheques were issued by the appellants in favour
of respondent arising out of the same transaction. On 06.04.2015,
respondent No.1 deposited cheque No.665643 in his Bank that is
Karnataka Bank Ltd., Sector-11, Panchkula. The cheque was
dishonoured and returned vide memo dated 07.04.2015 with the remarks
"funds insufficient". Other 63 cheques were also dishonoured.
3. Respondent No.1 sent the statutory demand notice under Section
138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as
"NI Act") on 06.05.2015. Complaints were filed by respondent No.1
against the appellants under Section 138 of the NI Act before the Judicial
Magistrate, Ist Class, Panchkula. In all 28 complaints were filed. The
complaints were decided by Judicial Magistrate vide his judgment dated
30.10.2018 holding the appellant Nos.1 and 2 guilty for the offence
punishable under Section 138 of the NI Act, who were accordingly
convicted. By order dated 13.11.2018 the appellants were sentenced to
undergo imprisonment for a period of two years and to pay jointly and
severally an amount equal to the amount involved in the present case i.e.
cheque amount plus 1% of this amount as interest as well as litigation
expenses.
4. The appeal was filed by the appellants against the judgment
dated 30.10.2018 and sentence dated 30.11.2018 in the Court of Sessions
Judge, Panchkula. In the appeal the appellants had filed an application
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under Section 389 of Cr.P.C. for suspension of sentence. The learned
trial court has suspended the sentence of the appellants by order dated
13.11.2018 for 30 days. The Appellate Court vide order dated 01.12.2018
entertained the appeal and suspended the sentence during the pendency
of the appeal, subject to furnishing of bail bond and surety bond in the
sum of Rs.50,000/- with one surety in the like amount and also subject to
deposit of 25% of the amount of compensation awarded by the learned
trial court in favour of the complainant. The appellants were directed to
deposit the amount within four weeks by way of demand draft in the
name of the Court.
5. The appellants were convicted in all 28 cases and the total
amount to be deposited under the order of the Appellate Court was, in all
cases, Rs.9,40,24,999/-. The appellants preferred an application seeking
extension of time to deposit the amount of 25% of the compensation
amount. The learned Sessions Judge allowed the application on
19.12.2018 granting time to deposit the amount till 28.01.2019. The
appellants filed an application under Section 482 Cr.P.C. seeking quashing
of the part of the order dated 01.12.2018 passed by the learned Additional
Sessions Judge, Panchkula, whereby the said Court has imposed a
condition to deposit 25% of the amount of compensation while suspending
the sentence.
6. The High Court vide its judgment dated 24.04.2019 dismissed
the petition of the appellants under Section 482 Cr.P.C. and other
connected petitions. The appellants preferred Special Leave
Petition(Criminal) Nos.4948-4975/2019 before this Court against the
judgment dated 24.04.2019 of the Hight Court of Punjab and Haryana at
Chandigarh.
7. This Court vide its judgment dated 29.05.2019 dismissed the
criminal appeals arising out of the SLPs(Criminal). Learned Additional
Sessions Judge, Panchkula in view of the non-compliance of the order
dated 20.07.2019 directed the appellants to surrender in the trial court
within four days. The appellants were also not present when the case
was taken by the Additional Sessions Judge on 20.07.2019. Another
petition under Section 482 Cr.P.C. was filed by the appellants challenging
the order dated 20.07.2019 passed by the Additional Sessions Judge.
The 28 petitions under Section 482 Cr.P.C. filed by the appellants have
been dismissed by the impugned judgment of the Punjab and Haryana
SURINDER SINGH DESWAL @ COL. S.S. DESWAL v.
VIRENDER GANDHI [ASHOK BHUSHAN, J.]
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High Court dated 10.09.2019. Aggrieved by which judgment these appeals
have been filed by the appellants.
8. Shri Balbir Singh, learned senior counsel appearing for the
appellants questioning the order of the Additional Sessions Judge dated
20.07.2019 and judgment of the High Court submits that by mere nondeposit of 25% of the amount of compensation as directed on 01.12.2018
cannot result in vacation of suspension of sentence. Learned counsel
submits that the direction to deposit 25% of the compensation as directed
by the trial court could not have been made under Section 148 of the NI
Act. Section 148 of the NI Act having come into force on 01.09.2018
could not have been relied by the Courts below. Since, the complaint
was filed in the year 2015 alleging offence under Section 138 of the NI
Act which was much before the enforcement of Section 148 of the NI
Act. He further submits that non-deposit of 25% of the amount of
compensation could not lead to vacation of the order suspending the
sentence rather it was open to the respondents to recover the said amount
as per the procedures prescribed under Section 421 Cr. P.C.
9. Learned counsel for the appellants submits that this Court in
Criminal Appeal No.1160 of 2019 (G.J. Raja vs. Tejraj Surana)
decided on 30.07.2019 has held the provisions of Section 143A of NI
Act to be prospective only that is to apply with respect to offence
committed after insertion of Section 143A w.e.f. 01.09.2018. He submits
that both Sections 143A and Section 148 inserted in NI Act by amendment
Act 20 of 2018, hence Section 148 was not attracted in the present case
which was only prospective and could have been utilised in offences
which were committed after 01.09.2018. He has also placed reliance on
the judgment of Bombay High Court in Ajay Vinodchandra Shah vs.
State of Maharashtra, (2019) 4 Mah LJ 705 and another judgment
of Punjab and Haryana High Court at Chandigarh dated 18.07.2019 in
CRM-M-29187 of 2019(O&M)(Vivek Sahni and another vs.
Kotak Mahindra Bank Ltd.).
10. We have considered the submissions of learned counsel for
the parties and have perused the records.
11. The appellants had challenged the order dated 01.12.2018
passed by the Additional Sessions Judge, Panchkula by which while
entertaining the criminal appeal of the appellants, Appellate Court has
suspended the substantive sentence of the appellants subject to deposit
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25% of the compensation awarded by the trial court in favour of the
complainant. The petitions under Section 482 Cr.P.C. filed by the
appellants questioning the order dated 01.12,2019 were dismissed by the
High Court vide its judgment dated 24.04.2019 against which judgment
the appellants have also filed SLP(Criminal)Nos.4948-4975 of 2019)
which were dismissed by this Court on 29.05.2019. All arguments raised
by the appellants questioning the order dated 01.12.2018 have been
elaborately dealt with by this Court and rejected. The submissions
regarding challenge to the order dated 01.12.2018 of the learned
Additional Sessions Judge which have been addressed before us have
been considered by this Court and rejected. It is useful to refer paragraph
8., 8.1 and 9 of the judgment of this Court which are to the following
effect:
"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 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 Code
of Criminal Procedure 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
Code of Criminal Procedure, 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
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VIRENDER GANDHI [ASHOK BHUSHAN, J.]
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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 138 of 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.
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9. Now so far as the submission on behalf of the Appellants
that even considering the language used in Section 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 AppellantAccused 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 AppellantAccused Under Section 389 of the Code of Criminal Procedure
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
SURINDER SINGH DESWAL @ COL. S.S. DESWAL v.
VIRENDER GANDHI [ASHOK BHUSHAN, J.]
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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 Section
138 of the N.I. Act."
12. This Court having already upheld the order of the Appellate
Court dated 01.12.2018 suspending the sentence subject to deposit 25%
of the amount of compensation any submission questioning the order of
the Appellate Court directing the suspension of sentence subject to deposit
of 25% of the compensation amount needs no further consideration. By
dismissal of the criminal appeals of the appellants on 29.05.2019 by this
Court the challenge stands repelled and cannot be allowed to be reopened.
13. The second round of litigation which was initiated by the
appellant by filing application under Section 482 Cr.P.C. was against the
order dated 20.07.2019 passed by the Additional Sessions Judge,
Panchkula by which Additional Sessions Judge held that the appellant
having not complied with the direction dated 01.12.2018 to deposit 25%
of the amount of compensation, the order of suspension of sentence
shall be deemed to have been vacated. The order dated 20.07.2019 was
an order passed by the Additional Sessions Judge on account of failure
of the appellant to deposit 25% of the amount of compensation. The
suspension of sentence on 01.12.2018 was subject to the condition of
deposit of 25% of the amount of compensation, when the condition for
suspension of sentence was not complied with, learned Additional Sessions
Judge was right in taking the view that order of suspension of sentence
shall be deemed to have been vacated. Challenge to order dated
20.07.2019 has rightly been repelled by the High Court by its elaborate
and well considered judgment dated 10.09.2019.
14. Learned counsel for the appellant has placed reliance on the
judgment of this Court dated 30.07.2019 in Criminal Appeal No.1160
of 2019 (G.J. Raja vs. Tejraj Surana). This Court in the above case
was considering provisions of Section 143A of the N.I. Act which was
inserted by the same Amendment Act 20 of 2018 by which Section 148
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of the N.I. Act has been inserted. This Court took the view that Section
143A is prospective in nature and confined to cases where offences
were committed after the introduction of Section 143A i.e. after
01.09.2018. In paragraph 22 of the judgment following has been held:
"22. In our view, the applicability of Section 143A of the Act must,
therefore, be held to be prospective in nature and confined to
cases where offences were committed after the introduction of
Section 143A, in order to force an accused to pay such interim
compensation."
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:
SURINDER SINGH DESWAL @ COL. S.S. DESWAL v.
VIRENDER GANDHI [ASHOK BHUSHAN, J.]
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SUPREME COURT REPORTS
[2020] 1 S.C.R.
"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, noncompliance 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 noncompliance. The order of the Additional Sessions Judge declaring that
due to non-compliance of condition of deposit of 25% of the amount of
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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, noncompliance 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 noncompliance of condition of suspension of sentence is concerned.
21. It is further to note that even Bombay High Court 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.
22. In view of the foregoing discussion, we do not find any merit
in the submission of the appellants. The appeals are dismissed.
Ankit Gyan
Appeals dismissed.
SURINDER SINGH DESWAL @ COL. S.S. DESWAL v.
VIRENDER GANDHI [ASHOK BHUSHAN, J.]