The pre-bail condition u/s 148 Negotiable Instruments Act cannot be used to jeopardize the right of the convict to appeal: Rajasthan High Court

Rajasthan High Court has reiterated that Section 148 of the Negotiable Instruments Act should not be imposed in a situation where the condition of depositing 20% ​​of the fine would amount to depriving a person convicted under Section 138 of the right of appeal.

Section 148, NI ActProvides that in an appeal by a person convicted of breach of trust in a check, the appellate court may order that the appellant deposit at least 20% of the fine or compensation awarded by the court of first instance.

The bank of Justice Arun Monga heard a petition challenging an order of the Sessions Judge granting the petitioner’s application for stay of sentence in a pending appeal against her conviction provided she deposits 20% of the fine.

The plaintiff’s lawyer argued that the plaintiff was a poor daily wage laborer who was unable to deposit the amount. It was argued that she would have to surrender because of the detention and would not even be able to defend her appeal.

After hearing arguments, the Court observed that a perusal of the impugned order revealed that the Sessions Court had committed a “grave error” in holding that Section 148 was absolute in nature.

The court referred to the Supreme Court case Jamboo Bhandari v. MP State Industrial Development Corporation Ltd. & Ors. (2023) It held that section 148 should be construed purposively and if the court was satisfied that the imposition of the condition would deprive the applicant of his right to appeal, an exception could be made after giving reasons.

“When the Court of Appeal considers the prayer under Section 389 of the Cr.PC of an accused convicted of an offense under Section 138 of the NI Act, it is always open to the Court of Appeal to consider whether the case is an exceptional one this justifies granting a suspension of the penalty without requiring a deposit of 20% of the amount of the fine/compensation.”

Against this background, the court found that, considering the plaintiff’s financial situation, an order for a deposit of 20% of the amount would have the effect of jeopardizing the dismissal of her appeal for failure to comply with the deposit condition. The court ruled that

“She appears to be in financial distress and, in the interests of justice, she must be granted leniency to enable her to defend herself in the pending appeal.”

Accordingly, the petition was allowed and the Sessions Judge was directed to proceed with hearing the appeal without insisting on advance payment.

Title: Asha Devi vs Narayan Keer & Anr.

Quote: 2024 LiveLaw (Raj) 333

Click here to read/download the order