Page No.# 1/7 GAHC010254482024 2025:GAU-AS:12080 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./492/2024 MD. MUSTAFA KAMAL PASSA @ MUSTAFA KAMAL PASA S/O LATE AMSAR ALI MUKTAR PERMANENT RESIDENT OF R.D.M. ROAD, AMIN PATTY, P.O. NAGAON P.S. NAGAON SADAR, PIN-782002, DIST. NAGAON, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:MD. FOKAR UDDIN S/O LATE ABDUL HOQUE R/O VILL- KOCH GAON P.S. RUPOHIHAT DIST. NAGAON ASSA Advocate for the Petitioner : M K BORAH, MS. P. KASHYAP Advocate for the Respondent : PP, ASSAM, MS. SURAYA RAHMAN (R-2),MR. A W AMAN (R- 2),MR. SARFRAZ NAWAZ (R-2) BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 05-09-2025 Page No.# 2/7 Heard Mr. M.K. Borah, the learned counsel for the petitioner. Also heard Mr. S. Nawaz, the learned counsel appearing for respondent no. 2 and Ms. S.H. Bora, the learned Additional Public Prosecutor appearing on behalf of the State respondent no. 1. 2. The present application has been filed u/s 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 against the impugned Judgment & Order dated 24.09.2024 passed by the learned Additional CJM, Nagaon, Assam in N.I. Case No. 84/2015 whereby the accused/petitioner has been convicted u/s 138 of the N.I. Act and has been sentenced to undergo S.I. for 6 months and to pay fine of Rs. 9,00,000/- with default stipulation. 3. It is submitted by Mr. Borah that against the order of appeal the present petitioner had preferred an appeal before the Court of learned Sessions Judge, Nagaon against the judgment and order passed by learned Additional CJM in N.I. Case No. 84/2025. But, while admitting the appeal vide order dated 29.04.2024, the learned Sessions Judge directed the present petitioner to pay 20% of the amount of compensation passed in N.I. Case No. 84/2025 and appeal was also accordingly admitted for hearing subject to the payment of 20% of the compensation amount. 4. On being highly aggrieved and dissatisfied by the order dated 29.10.2024 passed by the Court of learned Sessions Judge, Nagaon in Criminal Appeal No. 49/2024, the instant revision petition has been filed before this Court. 5. It is submitted by Mr. Borah that the learned Trial Court below erred both in law and facts while deciding the case u/s 138 of the N.I. Act and as such arrived in erroneous finding convicting the accused/appellant u/s 138 of the N.I. Act Page No.# 3/7 and sentenced to undergo S.I. for 6 months and to pay a fine of Rs. 9,00,000/- in default S.I. for 1 months. He further submitted that the cheques in question which were issued are the security cheques and with those cheques some false and baseless case has been projected by the respondent no. 2 which may not set up a case u/s 138 of the N.I. Act in as much as the security cheques cannot be made enforceable u/s 138 of the N.I. Act. 6. Mr. Borah further submitted that the petitioner is not in a position to pay 20% of the compensation amount due to his financial constraint and he further submitted that there is no ground assigns in the order passed by the learned Appellate Court by directing the petitioner to pay 20% of the compensation amount. In that context he also relied on an order of this Court passed by coordinate bench in Criminal Revision Petition No. 408/2022 dated 12.08.2022 and in para 6 of the order by observing the views of the Hon’ble Apex Court it has been held that though direction to deposit an amount u/s 148 of the NI. Act is to be construed as a rule but in case of special reasons an exception can be carved out, if there are special reasons. Accordingly, it is submitted by Mr. Borah that the petitioner may be exempted from paying 20% of the awarded compensation due to his financial constraints. 7. Mr. Nawaz, the learned counsel for the respondent no. 2 submitted in this regard that the original case of the N.I. Act is pending since 2015 and only to delay the disposal of this case the petitioner moved two criminal petitions before this Court at the stage of argument wherein vide order dated 29.05.2024 in Criminal Petition No. 693/2023, the learned Court below was directed to dispose the case hearing the argument. After the disposal of the earlier criminal petition, the petitioner again preferred a criminal petition for suspending his non-bailable Page No.# 4/7 warrant of arrest and considering his submission this Court had suspended his warrant issued against him with a direction to the learned Trial Court below for expeditions disposal of the case. Thus, by filing petition one after another the petitioner is delaying the entire proceeding and since last 10 years the respondent is not getting his relief and the case is still pending before the Appellate Court. 8. Mr. Nawaz further submitted that the present criminal revision petition is preferred against the Order dated 29.10.2024 passed by the learned Sessions Judge wherein the appeal was admitted for hearing subject to payment of 20% of the amount of compensation passed by the learned Trial Court below. But, in the instant petition, the petitioner not only challenged the order of the Appellate Court, but also challenged the judgment & order of the learned Trial Court below, convicting the accused/appellant in spite of the fact that the appeal is still pending before the learned Sessions Judge against the judgment & order passed by the learned Additional CJM and hence the present petition is also not maintainable as per law. 9. Mr. Nawaz further submitted that there can be an order of exemption for payment of 20% of the awarded compensation u/s 148 N.I. Act only in an exceptional and special circumstances. But, only the ground for his financial constraint cannot be a special circumstances for consideration of his prayer for exemption of 20% of the awarded compensation. 10. In that context, Mr. Nawaz also relied on a decision of Hon’ble Supreme Court passed in case of Surinder Singh Deswal @ Colonel S.S. Deswal & Others v. Virender Gandhi, reported in (2019) 11 SCC 341, wherein it is observed by the Hon’ble Apex Court that the amended Section 148 N.I. Act as a whole to be read with statement and objects and reasons of the amending Page No.# 5/7 Section 148 of the N.I. Act, though it is true that in the amended Section 148 of the N.I. Act, the word used as “may”, it is generally to be construed as “rule” or “shall” and not to direct to deposit by the Appellate Court is an exception for which special reasons are to be assigned. The para 8 of the said judgment read as under:- “8. 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 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 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 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.” Page No.# 6/7 11. He further submitted that there no specific or special circumstances is brought by the petitioner to pass any order of exemption and accordingly the learned Appellate Court had rightly passed the order for payment of 20% of the awarded compensation. 12. It is further submitted by Mr. Nawaz that though in the instant case there is no stay is operating but the appeal is not proceeded further due to pendency of the criminal revision petition before this Court. However, it is fairly submitted by Mr. Nawaz that appeal may be heard on merit and the suspension of sentence may be subject to the payment of 20% of the awarded compensation. 13. After hearing the submission made by the learned counsel for the petitioner, I have also perused the case record and it is seen that the petitioner preferred an appeal against the order of conviction passed by the learned CJM in N.I. Case No. 84/2015 dated 24.09.2024. But, in spite of pendency of the appeal which is still pending for disposal before the learned Special Judge, Nagaon wherein the appeal was admitted by the learned Sessions Judge subject to payment of 20% of the compensation amount under provision of Section 148 of the N.I. Act. It is a fact that there is no special reason has been assigned by the learned Appellate Court and in the same time it is also cannot be denied that no exceptional or special reasons are brought by the petitioner to consider his prayer for exemption of payment of 20% of the compensation amount. In the present petition also the petitioner failed to assign any special reasons or exceptional circumstances to pass any order for exemption of payment of 20% of the awarded compensation. Though the case is filed challenging the order of learned Appellate Court dated 29.10.2024 but, the entire petition is full of averment challenging the order of conviction passed against the petitioner, though it is an admitted fact that the order of conviction has already put to Page No.# 7/7 challenge before the appellate Court which is still pending for disposal. In such a situation/circumstances, the petitioner cannot challenge the order of conviction before this Court wherein his only challenge is against order dated 29.10.2024 passed by the learned Sessions Judge while admitting the Criminal Appeal No. 49/2024. 14. Coming to the order passed by the learned Sessions Judge, it is seen that prima facie there is no illegality or irregularity has been committed by passing the order dated 29.10.2024 and except citing of a judgment of the Hon’ble Apex Court, the petitioner did not bring any special reasons or circumstances for exemption from paying 20% of the awarded compensation amount. However, considering the submission made by the learned counsel for the respondent and other aspects of the case record and also considering the fact that this matter is pending for adjudication since 2015 the learned Appellate Court may hear the appeal on merit and can dispose of the matter. However, the suspension of sentence may be a subject of payment of 20% of the compensation amount. The learned Appellate Court shall also make endeavour to dispose of the criminal appeal within a reasonable period considering the fact that the case of the petitioner filed under the N.I. Act is pending since the year 2015. Both the parties are accordingly directed to appear before the learned Sessions Judge and to proceed with the hearing accordingly. JUDGE Comparing Assistant