WHETHER REVISION IS MAINTAINABLE AGAINST INTERLOCUTORY ORDER ?

CASE BRIEF

IN THE MATTER OF:

BAPUJI MURUGESAN

VERSUS

    MYTHILI RAJAGOPALAN    (Crl. R.C. No. 766 of 2019)

1. FACTS:
2. That the Petitioner was convicted by learned MM, Fast Track Court for an offence under Section 138 of Negotiable Instruments Act, 1881. The appellant was directed to undergo imprisonment for a period of 6 months and was directed to pay double the cheque amount as a compensation under Section 357(3) of Cr.P.C.
3. That the suspension of sentence was granted vide order dated 12.02.2019, the petitioner was ordered to be enlarged on bail upon execution of bail bond amounting to Rs. 10,000/- (Rupees Ten Thousand Only/-) and the petitioner shall submit 15% of the cheque amount i.e., Rs. 3,18,000/- (Rupees Three Lakhs Eighteen Thousand Only/-) to the credit of C.C. No. on the file of the Trial Court within 60 days.
4. That the respondent is aggrieved by the said order in as much as Section 148 of the Negotiable Instruments Act, 1881 lays down that 20% of the compensation/fine amount has to be deposited and in the instant case, while double the cheque amount has been ordered as compensation, the learned Principal Sessions Judge, Chennai ordered 15% of the cheque amount alone to be deposited in terms of Section 148 of the Negotiable Instruments Act, 1881.

Thus, Revision Petition was filed.

• ARGUMENTS:

• Mr. Bijesh Thomas, learned Counsel for the petitioner, relying upon the judgment in SURINDER SINGH DESWAL @ COL. S.S. DESWAL AND ORS. VS. VIRENDER GANDHI AND ANR.[1], submitted that the Hon’ble Supreme Court of India has held that an order for deposit under Section 148 of the Negotiable Instruments Act, 1881 is mandatory and a plain reading of the Section 148 of the Act, it is clear that it is only 20% of the compensation/fine amount and not the cheque amount and therefore, the Trial Court ought to have ordered deposit of a total sum of Rs.8,64,000/-, being 20% of the compensation amount and therefore, he would pray that to that extent, this Court should interfere in the order of the learned Principal Sessions Judge, Chennai.
• Mr. G.R. Hari, the learned Counsel for the respondent submitted that the said order, under Section 148 of the Negotiable Instruments Act, 1881, is interlocutory in nature and therefore, the Revision itself is not maintainable.  In support of his submission, the learned Counsel submits that the very same order under Section 148 of the Negotiable Instruments Act, 1881 is held to be interlocutory in nature and the Revision is held to be not maintainable by the Kerala High Court in the judgment in (SAMUEL GEORGE, MALIYEKKAL BUNGLOW VS. STATE OF KERALA AND ANR.)[2]  and further relied upon the judgment of this Court in (UDAIYAR @ SATTAIUDAIYAR AND ANR. VS. STATE)[3], wherein, this Court has held that the order of dismissal of application for suspension of sentence and bail is not a final order and is only an interlocutory order and therefore, the Revision is not maintainable.
• The learned Counsel further would submit that on a reading of Section 148 of the Negotiable Instruments Act, 1881, it would be clear that deposit of the 20% is not a pre-condition for entertaining the appeal and neither Section 148 of the Negotiable Instruments Act, 1881 imposes the same as the condition for grant of suspension of sentence.  Therefore, he would pray that this Court should dismiss the Revision and to direct for disposal of the main appeal on merits, which is pending for the past three years.

• ISSUES RAISED:

• WHETHER THE ORDER IMPUGNED IS AN INTERLOCUTORY ORDER AND WHETHER ANY REVISION WOULD LIE AGAINST THE SAME OR NOT?
• WHETHER THE REVISION-PETITION IS MAINTAINABLE OR NOT?

• JUDGEMENTS CITED:

• AMAR NATH AND ORS. VS. STATE OF HARYANA AND ANOTHER[4] – The test advocated is that if the upholding objections raised by one party, it would result in culminating the proceedings, then the same would not be an interlocutory order.
• PARMESHWARI DEVI (SMT) VS. STATE AND ANOTHER[5] – An order, summoning a third party to the case, though it may not be a conclusive with reference to the stage on which it is made, it was held that it was not interlocutory in nature.
• SULOCHANA VS. M. KULASEKARAN[6] – If the order substantially affects the rights of the accused, it would not be an interlocutory order.
• L.G.R. ENTERPRISES AND ORS. VS. P. ANBAZHAGAN[7] – That because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of the enactment of Section 138 of the N.I. Act was being frustrated, the Parliament has thought it fit to amend Section 148 of the N.I. Act, by which the first appellate Court, in an appeal challenging the order of conviction under Section 138 of the N.I. Act, is conferred with the power to direct the convicted accused – appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. By the amendment in Section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused – appellant has been taken away and / or affected.”

• JUDGEMENT RENDERED:

• That it is not a pre-condition in the appeal to be taken on file and therefore will not result in a final order of deciding the appeal.  Applying the test of deciding the rights of the parties, it has been held that it is only a direction to deposit, subject to the final outcome in the appeal and therefore is only a matter of procedure without finally determining the rights of parties. 
• The bench applied the test as to whether non-passing of such order or accepting of any plea by the accused or the complainant, whether it would result in culmination of proceedings, the answer is again in the negative.  Therefore, applying any of the tests advocated by the Hon’ble Supreme Court of India, still the order, which is passed in exercise of power under Section 148 of the Negotiable Instruments Act, is neither a final order nor an intermediate order so as to hold that the revision as against the same is maintainable.
• That the order for grant of suspension of sentence or bail are all interlocutory orders and are not revisable under Section 397 of the Code of Criminal Procedure.  Therefore, viewing from any angle, and held that the Revision against the present order is not maintainable.

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[1] (2019) 11 SCC 341

[2] Crl.Rev.Pet.No.2752 of 2009

[3] Crl.  R.C.(MD). No. 126 of 2018

[4] (1977) 4 SCC 137

[5] 1981 CrLJ 958 (Bom

[6] 2003 CrLJ 4373 (4377) (Mad)

[7] MANU/TN/4768/2019