Page No.# 1/6 GAHC010030602025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./239/2025 SAYESTA KHAN S/O LATE KHALILUR RAHMAN R/O VILL-BETBARI PATHAR, P.S. BARPETA, DIST. BARPETA, ASSAM VERSUS ANOWAR HUSSAIN S/O BINAD ALI R/O VILL-KAMALPUR, P.S. BARPETA, ASSAM Advocate for the Petitioner : MR SARFRAZ NAWAZ, A S CHOUDHURY,MR A W AMAN,MR. SURAJIT DAS Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 04.03.2025 1. Heard Mr. S. Nawaz, the learned counsel for the petitioner. Also heard Mr. R. J. Baruah, the learned Additional Public Prosecutor for the State Page No.# 2/6 respondent. 2. This application under Section 528 of BNSS 2023 read with Section 227 of the Constitution of India has been filed by the petitioner, namely, Sayesta Khan, impugning the order dated 16.12.2024, passed by the Court of the learned Additional Sessions Judge, Barpeta, in Criminal Appeal No. 35/2024. 3. The petitioner had filed an appeal against the judgment and order dated 14.11.2024, passed by the learned Additional Chief Judicial Magistrate, Barpeta, in NI Case No. 135/2022, whereby the petitioner was convicted under Section 138 of the Negotiable Instrument Act, 1881 and was sentenced to undergo rigorous imprisonment for 8 months and to pay fine of Rs. 11 lakhs, and in default, to undergo simple imprisonment for another 5 months. The appeal was registered as Criminal Appeal No. 35/2024. 4. By the impugned order dated 16.12.2024, the Court of the learned Additional Sessions Judge, Barpeta admitted the said appeal and suspended the sentence of imprisonment and the fine imposed on the petitioner by the impugned judgment, subject to the deposit of 20% of the fine amount awarded by the Trial Court. The said direction was passed by the First Appellate Court under Section 148 of the Negotiable Instrument Act, 1881. 5. The learned counsel for the petitioner has submitted that the petitioner has a good case in this appeal, as the debt against which the cheque was issued by the petitioner to the respondent is apparent a time barred debt. 6. The learned counsel for the petitioner submits that from the averments made in the complaint petition by the respondent, it is clear that the loan was taken by the petitioner from the respondent on 30.01.2018, whereas the cheque in question was issued on 18.02.2022, i.e. after a period of four years. 7. Therefore, the learned counsel for the petitioner submits that the loan Page No.# 3/6 against which the cheque was issued was not a legally enforceable debt when the said cheque was issued. 8. The learned counsel for the petitioner submits that under such circumstances, the case of the petitioner falls within the category of an exceptional case where the suspension of sentence may be allowed without imposing the condition of depositing 20% of fine or compensation amount as provided in Section 148 of the Negotiable Instrument Act, 1881. 9. The learned counsel for the petitioner has submitted that law in this regard has been settled by the following judgments of the Apex Court: i. Surinder Singh Deswal @ Col. S.S. Deswal and Others Vs. Virender Gandhi reported in (2019) 11 SCC 341; ii. Jamboo Bhandari Vs. M.P. State Industrial Development Corporation Ltd. and others reported in (2023) 10 SCC 446 10. The learned counsel for the petitioner by citing the case of “Surinder Singh Deswal @ Col. S.S. Deswal and Others Vs. Virender Gandhi” (Supra) has submitted that the word “may” used in Section 148 of the Negotiable Instrument Act, 1881 is generally to be constituted 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. 11. The learned counsel for the petitioner submits that the law laid down by the Apex Court in Surinder Singh Deswal @ Col. S.S. Deswal and Others Vs. Virender Gandhi (Supra) has been further clarified by the Apex Court in the case of Jamboo Bhandari Vs. M.P. State Industrial Development Corporation Ltd. and others (Supra), wherein it is observed as follows: “6. What is held by this Court is that a purposive Page No.# 4/6 interpretation should be made of Section 148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded. 7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded. 8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea. 9. We disagree with the above submission. When Page No.# 5/6 an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not.” 12. The learned counsel for the petitioner has thus, submitted that the law as settled by the Apex Court is that when the accused applies for suspension of sentence, he normally applies for grant of relief of the suspension of sentence without any condition therefore, the Court dealing with such an application has to consider whether the case falls within exception or not. 13. In the instant case, it appears that by the impugned order, while directing the petitioner to deposit 20% of the fine awarded by the Trial Court, the First Appellate Court has not considered as to whether the case of the petitioner falls within the exception or not. 14. I have considered the submissions made by the learned counsel for the petitioner. 15. The learned counsel for the petitioner has further submitted that the case that the Criminal Appeal No.35/2024 is fixed before the First Appellate Court on 13.03.2025 for payment for deposit of the 20% of the fine amount, as directed by the impugned order. 16. On bare perusal of the impugned order, it appears that the First Appellate Court has not considered as to whether the case of the petitioner falls within the exception or not as mandated by the Apex Court in the judgments referred hereinabove. 17. Therefore, this Court without issuing notice to the respondent, under the Page No.# 6/6 facts and circumstances of this case, deems it proper to direct the First Appellate Court to comply with the mandate of the Apex Court, as observed by the Appellate Court in Paragraph 9 of its judgment in “Jamboo Bhandari Vs. M.P. State Industrial Development Corporation Ltd. and others” (Supra), and thereafter consider afresh the prayer for suspending the sentence during the pendency of the Criminal Appeal No.35/2024. 18. It is also made clear that the petitioner is allowed to plead before the First Appellate Court that his case falls within the ambit of exceptional case, as observed by the Apex Court in the aforesaid judgments. 19. This Criminal Petition is accordingly, disposed of without issuing notice to the respondents. JUDGE Comparing Assistant