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138 n.i.act, accused convicted, appeal procedure (Criminal Law)

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Author : soniya

Posted On 23 April 2013 at 15:08

Dear and respected members,
We have fought one cr. case of 138 n.i. act and accused has got conviction. Now i have to file an appeal against said order of trial court in sessions court of Bombay.
Will any body can help me with the section under which such appeal can file along with a specimen draft of an appeal and the procedure if any for file such appeal.
I have handled many 138 case but most of them have been settled and withdrawn. Actually i m a civil practitioner.
This is the first case which has reached at final stage and my client has got convection by the M.M. court.
Please assist me.
thanks and regards.
Advocate Soniya Sharma.





Expert : ajay sethi

Posted On 23 April 2013 at 16:15

Against an order of conviction for the offence punishable under
section 138 of the said Act, an appeal is maintainable before a Sessions
Court in view of sub section 3 of section 374 of the said Code.
The substantive relief which may be granted in such
appeal is of setting aside the conviction for an offence which relief can
never be valued in terms of money. Such order of acquittal may incidentally 8
prevent monetary loss.


The law on
this aspect relating to appeals arising out of an order of conviction under
section 138 of the said Act has been laid down by the Apex Court in the case
of Dilip S. Dahanukar Vs. Kotak Mahindra Company Limited and another 5
([2007]6-SCC-521). The Apex Court held that the Appellate Court while
suspending the sentence under section 138 of the said Act 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. The Apex Court held that the appellate court can direct only a
reasonable amount out of the compensation amount



Expert : ajay sethi

Posted On 23 April 2013 at 16:16

Bombay High Court
M/S.Gurukripa Traders vs Kailas Ramnarayan And Another on 8 June, 2009
Bench: A.S. Oka
1

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2251 OF 2008

M/s.Gurukripa Traders Petitioner versus

Kailas Ramnarayan and another Respondent Mr.M.S.Karnik for petitioner.

Mr.Fiji Fredricks i/by F.F.& Associates for respondent no.1 Mr.S.R.Borulkar, Public Prosecutor for the State.

CORAM : A.S.OKA, J.

DATE OF RESERVING THE JUDGEMENT :- 07th April 2009

DATE OF PRONOUNCING THE JUDGEMENT : 08th June 2009

JUDGEMENT :-

1. On 5th May 2009 the learned counsel appearing for the parties were put to notice that this petition will be disposed of finally at the admission stage. Accordingly, the submissions have been heard of the learned counsel appearing for the petitioner, the learned counsel appearing for the first respondent as well as learned Public Prosecutor for the State.

2. The petitioner was arraigned as an accused in a complaint filed by the first respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act"). By the judgement and order dated 03rd October 2008, the learned Judicial Magistrate, First Class, at Niphad convicted the petitioner for commission of 2

offence under section 138 of the said Act. The petitioner was sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs.10.00 lakhs. In default of payment of fine, he was sentenced to undergo simple imprisonment for fifteen days. Out of the fine amount of Rs.10.00 lakhs, a sum of Rs.9.00 lakhs was ordered to be paid to the first respondent.

3. The petitioner was taken in custody on passing the order of conviction. An appeal against the order of conviction was preferred by the petitioner. In the appeal an application was made by the petitioner under section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). An order was passed on the said application at Exhibit-4 on 8th October 2008 by the learned Ad-hoc Additional Sessions Judge, Niphad. By the said order the learned Judge stayed the execution of sentence on the petitioner depositing 50% of the fine amount immediately and the remaining amount within fifteen days. The petitioner was ordered to be enlarged on bail only on deposit of 50% of the fine amount.

4. It appears that on the appeal against the order of conviction, the petitioner was called upon to pay ad-valorem court fees on the basis of the fine amount. It appears that the petitioner was called upon to pay court fees of Rs.51,800/-. Initially the Sessions Court granted time up to 15 th October 2008 to the petitioner to pay the court fees. On 15th October 2008, on an application filed by the petitioner, the learned Additional Sessions Judge passed an order granting time to the petitioner as a last chance to deposit the court fees till 20th October 2008. The challenge in this petition under Article 3

227 of the Constitution of India is to the order dated 8 th October 2008 passed on application under section 389(1) of the said Code. The challenge is also to the direction issued by the Sessions Court to the petitioner to pay the court fees on the appeal.

5. On 22nd October 2008, this Court issued notice to the first respondent. This Court, by way of ad-interim relief, stayed the direction of deposit of court fees of Rs.51,800/-. This Court also stayed the direction to deposit the balance 50% of the fine amount. It must be stated here that in terms of order dated 8th October 2008, the petitioner deposited a sum of Rs. 5.00 lakhs with the Sessions Court before filing this petition and accordingly the petitioner has been enlarged on bail.

6. The submission of the learned counsel for the petitioner is that as a condition for suspension of the substantive sentence the petitioner could not have been called upon to deposit the entire fine amount of Rs.10.00 lakhs. The submission of the counsel for the petitioner is that the Sessions Court could have imposed a condition of deposit of a reasonable amount. According to the learned counsel for the petitioner, the petitioner is a student and therefore it was unjust on the part of the Sessions Court to have directed the petitioner to deposit the entire fine amount of Rs.10.00 lakhs. He submitted that a sum of Rs.5.00 lakhs has already been deposited by the petitioner which is a reasonable amount.

7. He submitted that there is no provision in the Bombay Court Fees 4

Act, 1959 (hereinafter referred to as "the Court Fees Act") requiring an accused to pay ad-valorem court fees while preferring an appeal against the order of conviction. He submitted that the direction to pay the court fees on memorandum of appeal defeats the right of appeal of the petitioner-accused against an order of conviction.

8. The learned counsel appearing for the first respondent supported the impugned order directing the petitioner to deposit a sum of Rs.10.00 lakhs. He submitted that considering the findings recorded by the learned Magistrate, there was every justification for issuing such a direction. This Court had called upon the learned Public Prosecutor Mr.Borulkar to appear in the matter as the question was regarding the liability of payment of court fees on ad-valorem basis. When a query was made to the learned Public Prosecutor as to whether there is any specific provision under the Court Fees Act under which an accused is required to pay ad-valorem court fees on the basis of fine/compensation amount while preferring an appeal against an order of conviction, the learned Public Prosecutor submitted that he could not lay his hands on any such provision under the Court Fees Act.

9. I have carefully considered the submissions. The first question is regarding validity of the direction issued by the learned Additional Sessions Judge regarding deposit of entire fine amount of Rs.10.00 lakhs. The law on this aspect relating to appeals arising out of an order of conviction under section 138 of the said Act has been laid down by the Apex Court in the case of Dilip S. Dahanukar Vs. Kotak Mahindra Company Limited and another 5

([2007]6-SCC-521). The Apex Court held that the Appellate Court while suspending the sentence under section 138 of the said Act 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. The Apex Court held that the appellate court can direct only a reasonable amount out of the compensation amount to be deposited. The Apex Court held that as a condition for suspension of sentence, the appellant cannot be called upon to deposit unreasonable amount. While exercising the appellate power, ordinarily, a person should not suffer imprisonment only because the conditions imposed for suspending the sentence are harsh.

10. In the present case, out of the fine amount of Rs.10.00 lakhs, a sum of Rs.5.00 lakhs has already been deposited by the petitioner. In the application made by the petitioner before the Sessions Court under section 389(1) to the said Code, it was set out that the petitioner was a student taking education in college and his examination was to commence on 17th October 2008. It must be noted here that the order of conviction was passed by the learned Magistrate on 3rd October 2008. However, the learned Magistrate while exercising the power under sub section 3 of section 389 of the said Code granted bail to the petitioner subject to deposit of 50% of the amount. It is stated that as the petitioner could not pay the said amount, he was taken into custody. Considering these aspects, the direction issued by the learned Additional Sessions Judge to deposit entire fine amount of Rs. 10.00 lakhs was unjust and improper. The substantive sentence of imprisonment was of one month. The sentence in default of payment of fine 6

was of fifteen days. Therefore, after admitting the appeal against conviction, a direction issued imposing a condition of deposit of Rs.10.00 lakhs virtually amounted to denial of right of appeal to the petitioner. As stated earlier, the petitioner has already deposited a sum of Rs.5.00 lakhs which can be certainly said to be a reasonable amount in terms of the decision of the Apex Court in the case of Dilip S. Dahanukar (supra). Therefore, the impugned order dated 8th October 2008 directing deposit of the entire fine amount will have to be modified.

11. The second question to be decided is whether the petitioner was liable to pay ad-valorem court fees on the memorandum of appeal against the order of conviction.

12. Against an order of conviction for the offence punishable under section 138 of the said Act, an appeal is maintainable before a Sessions Court in view of sub section 3 of section 374 of the said Code.

13. It will be necessary to refer to the relevant provisions of the Court Fees Act which deal with the appeals. Perhaps the only section of the Court Fees Act which deals with the appeals is section 7. On plain reading of section 7 the same is applicable where the challenge is to an order relating to compensation under any Act for the time being in force for the acquisition of land for public purpose. Sub section 2 of section 7 applies to an appeal preferred against an award of a Claims Tribunal under the Motor Vehicles Act, 1988. Section 7 has no application to an appeal preferred against an 7

order of conviction.

14. It will be necessary to refer to the first and second schedules of the Court Fees Act. Article-1 of Schedule-I deals with memorandum of an appeal which is not otherwise provided for in the Court Fees Act which is presented to any civil or revenue Court. Therefore, Article-1 will not apply to the appeals under the said Code. Article-3 of Schedule-I deals with an appeal against an order passed under the Arbitration Act, 1940. Article-4 of Schedule-I deals with a memorandum of appeal which is capable of treated as a suit to set aside a decree or order having a force of decree. Articles-5 and 6 of Schedule-I deal with memorandum of appeals filed to set aside alienation or for possession. Article-7 of Schedule-I also deals with an appeal. Article-7 reads thus:-

"7. Any other plaint, application or petition (including memorandum of appeal), to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as a plant or is described as the mode of obtaining the relief as aforesaid." An appeal against an order of conviction for the offence under section 138 of the said Act by no stretch of imagination can be said to be an appeal to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss. Such an appeal is essentially against an order of conviction. The substantive relief which may be granted in such appeal is of setting aside the conviction for an offence which relief can never be valued in terms of money. Such order of acquittal may incidentally 8

prevent monetary loss. The relief of setting aside an order of conviction is a substantive relief which is not capable of being valued in terms of monetary gain or prevention of monetary loss. None of the other articles of Schedule-I deal with an appeal against an order of conviction. A perusal of Schedule-II of the Court Fees Act shows that none of the articles therein apply to an appeal under section 374 of the said Code. It will be necessary to refer to Article-18 of Schedule-I which is incorporated by Maharashtra Act No.17 of 2008. Article-18 applies to a complaint or charge of an offence under section 138 of the said Act. It provides that the court fees of Rs.200/- is payable on such a complaint or charge when the amount of cheque does not exceed Rs.10,000/-. It provides that when the amount of cheque exceeds Rs.10,000/-, the court fees payable on the complaint will be Rs.200/- for every Rs.10,000/- or part thereof subject to maximum of Rs. 1.50 lakhs. If the Legislature intended that the court fees shall be payable on memorandum of appeal for challenging an order of conviction passed for the offence under section 138 of the said Act, the Legislature would have certainly amended the provisions of the Court Fees Act when amendment was carried out by incorporating Article-18 of Schedule-I by Maharashtra Act No.17 of 2008.

15. It will be necessary to refer to section 43 of the Court Fees Act. Sub section 1 provides for grant of refund of court fees in any suit or an appeal or cross objection. Sub section 2 of section 43 of the Court Fees Act was amended by the same Maharashtra Act No.17 of 2008 providing for refund of court fees paid on the complaint under section 138 of the said Act. As a 9

result of the said amendment, the State Government is entitled to pass an order providing for repayment of court fees paid on a complaint under section 138 of the said Act. It is pertinent to note that if the Legislature intended to provide that an ad-valorem court fees are payable on compensation amount or fine amount in an appeal against the order of conviction for the offence under section 138 of the said Act, the Legislature would have amended sub section 1 and sub section 2 of section 43 providing for refund of the court fees on memorandum of such an appeal. However, that has not been done. Thus, under the Court Fees Act, there is no provision requiring an appellant who has preferred an appeal against an order of conviction for the offence under section 138 of the said Act to pay ad-valorem court fees on the compensation/fine made payable under the order of conviction.

16. At this stage it will be necessary to refer to the decision of the Apex Court in the case of Dilip Dahanukar (supra). In paragraph 12 of the said decision the Apex Court has held thus:-

"12. An appeal is indisputably a statutory right and an offender who has been convicted is entitled to avail the right of appeal which is provided for under Section 374 of the Code. Right of appeal from a judgement of conviction affecting the liberty of a person keeping in view the expansive definition of Article 21 is also a fundamental right. Right of appeal, thus, can neither be interfered with or impaired, nor can it be subjected to any condition." In paragraph 55 the Apex Court has held thus:-

10

"55. ... ... ... We have noticed hereinbefore that Article 21 of the Constitution of India read with Section 374 CrPC confers a right of appeal. Such a right is an

absolute one. ... ..."

17. In the circumstances, the direction issued by the Sessions Court requiring the appellant to pay ad-valorem court fees on the basis of amount of fine or compensation is completely illegal. While preferring such an appeal, the appellant-accused is not liable to pay the court fees on ad- valorem basis on the fine and/or compensation amount. Directing an appellant to pay such an amount completely defeats the absolute right of an appeal against an order of conviction. Such a direction defeats fundamental right of an appellant. Therefore, the said direction will have to be quashed and set aside.

18. Hence, I pass following order :-

A) The impugned judgement and order dated 8th October 2008 passed below application at Exhibits-4 and 6 in Criminal Appal No.49 of 2008 is modified. The petitioner is required to deposit only 50% of the fine amount as a condition for grant of relief under sub section 1 of section 389 of the said Code. As the petitioner has already deposited 50% of the fine amount, the operation of the sentence will remain suspended till the disposal of the appeal before the Sessions Court;

B) The direction issued by the Sessions Court to the petitioner to 11

deposit ad-valorem court fees on the memorandum of appeal is quashed and set aside. Consequently, the order dated 15th October 2008 (Exhibit-C to the petition) is quashed and set aside and it is declared that the petitioner is not liable to pay ad-valorem court fees on the memorandum of appeal;

C) The writ petition is partly allowed in above terms; D) Hearing of the pending appeal is expedited.

(A.S.OKA, J.)



Expert : ADVOCATE DEFENSE.

Posted On 23 April 2013 at 19:15

The case law quoted is after the conditions were imposed by sessions court.

1) You should prepare the revision after going through entire record very minutely.

2) If you can pin point glaring injustice in the lower court Judgement, your revision / appeal can be admitted even without any conditions.SINCE APPEAL BY ACCUSED IS RIGHT.

3) Otherwise also if you can pin point some major lapses in trial or basic defect in the evidence of the complainant in lower court now normally TEN PERCENT of cheque amount or TWENTY FIVE percent max are given.

If the economic hardships are properly presented than even graded payment facility are also allowed by the court.

HOWEVER IT WILL DEPEND ON HOW YOU PRESENT YOUR APPEAL / REVISION memo., and support with your arguments.



Expert : ADVOCATE DEFENSE.

Posted On 23 April 2013 at 19:31

I will give you simple and real example.One of my known advocate did not bother to conduct the case properly in lower court so there was conviction. There are many simple tricks to prolong but client and lawyer both did not bother.

Now appeal in sessions court was filed, for suspension of conviction the court wanted min 25% of cheque amount as deposit.

Simple arguments before the court-

1) Sir gold prices are crashed so no bank is even ready to give loan on Mangalsutra.

2) And due to 31st March all money is sucked from the market.

COURT- But it is now April.

Sir ripples effects are still there SO shortage of funds in business .

OKAY THE COURT SAID WILL GIVE YOU FACILITY TO DEPOSIT ON MONTHLY BASIS- TELL HOW MANY MONTHS YOU NEED........AND NOW BAIL ALLOWED PAYMENT TO BE DEPOSITED FROM NEXT MONTH.





Expert : raj kumar makkad

Posted On 23 April 2013 at 23:49

+Nadeem! Here contradictory views have been expressed. To whom you favour as you don't want to add anything.......



Expert : ADVOCATE DEFENSE.

Posted On 24 April 2013 at 10:04

Law is logic and that is why there are two sides in any case.

Law can not run like a math problem which has fixed solutions, if it is so we need not have persons as judges but put computer machines and feed the problems to get answers.

Law gets continuously evolved and that is why even a SUPREME COURT Judge after retirement VERY RECENTLY publicly said that the award of DEATH SENTENCE by him to a convict was wrong.



Expert : chitra gupta

Posted On 24 April 2013 at 11:16

yes,u have to file appealpetetion before hon'ble session court under sub section 3 of section 374 of the relevant act within the stipulated period.


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