If prayer for waiver of pre-deposit is made before Appellate Court, litigant has to know from order passed that plea raised by him were considered & dealt with:P&H HC

Read Order- Sarabjeet Singh Wadhawan and Ors v. M/s Dinesh Steel through its Proprietor and Ors

Tulip Kanth

Chandigarh, October 4,2021: The Punjab and Haryana has set aside certain Orders whereby the Additional Sessions Judge, Faridabad, suspended the sentence awarded under Section 138 of the Negotiable Instruments Act, 1881  subject to deposit of 20% of the compensation amount within a period of one month.The period to deposit was extended from time to time.

Herein, the petitioners were convicted by Judicial Magistrate Ist Class, Faridabad and sentenced to undergo simple imprisonment for one year under Section 138 of the Act and to further pay compensation of Rs. 1,05,00,000.

Aggrieved of conviction, appeals alongwith applications for suspension of sentence were filed. On January 6, 2021, notice was issued in the appeal, the sentence was suspended on furnishing of bail bonds of Rs.1,00,000/- and subject to deposit of 20% of the compensation amount.

The main grievance of the petitioner’s counsel was that the Appellate Court while passing the impugned orders had not considered the decision of Supreme Court in Surinder Singh Deswal @ Col. S.S. Deswal and others Versus Virender Gandhi. The Appellate Court proceeded on the basis that there was no discretion with the Court to waive the pre deposit of 20%. The Appellate Court never dealt with the pleas raised for non-deposit.

The Bench of Justice Avneesh Jhingan was of the view that as per Supreme Court’s decision while dealing with the exceptional circumstances, the Court has to justify the direction for waiver by assigning reasons.

It was opined that the contention of counsel for the complainant that reasons are to be assigned only when the waiver is allowed and no reason is to be given if there is direction of pre-deposit of the compensation amounts seemed impressive at the first blush but it was not so.

“If a prayer for waiver of pre-deposit has been made before the Appellate Court, the minimum requirement for compliance of principle of natural justice would be that the litigant comes to know from the order passed that the plea raised by him were considered and dealt with”, added the Bench.

The reasoning given while setting aside the impugned orders was that from the perusal of impugned order, it was evident that the decision of the Supreme Court was not considered. It was not forth coming from the order that the pleas raised by the petitioner for waiver of pre-deposit were dealt with, it was so, as the Court proceeded on the basis that there was no discretion for waiver.

The Court disposed of the petitions by remanding the matter back to the Appellate Court, to consider the application for suspension of sentence and prayer for waiver of pre-deposit afresh in view of decision of the Supreme Court in Surinder Singh Deswal’s case (supra).

Stating that it would be appreciated if an attempt is made by the Appellate Court to decide the applications for suspension of sentence and waiver of pre-deposit expeditiously, the Bench clarified that remand will not be construed as an opinion on the merits of the prayer for pre-deposit by this Court.