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Suspension of Sentence – Non-compliance of the condition of suspension of sentence is sufficie

Surinder Singh Deswal v. Virender Gandhi, Criminal Appeals No. 1936-1963 of 2019 – 08th January, 2020

CORAM: A two judge bench of the Supreme Court comprising of Justice M. R. Shah and Justice Ashok Bushan.

The Court held that: Non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated.

FACTS:

The appellants who were partners of GLM Infratech Private Limited issued 63 checks for payments due against the respondents. The checks were dishonoured and the respondents issued a demand notice for the payment which had no response from the appellants. The respondents filed a complaint under Section 138 of Negotiable Instruments Act. The Judicial Magistrate Court of Panchkulla held the appellants guilty. The appellants appealed to the Court of Sessions Judge, Panchkulla and the court suspended the sentence on the condition that the appellants deposit 25% of the claim amount to the Court. The Court subsequently upheld the conviction against which the appellants appealed to the High Court. The High Court dismissed the appeal and the appellants appealed to the Supreme Court under Section 482 of the Code of Criminal Procedure. The Supreme Court upheld the conviction and dismissed the appeal. The Sessions Court apparently vacated the suspension of sentence due to the non-compliance by the appellants with its order to deposit 25% of the claim amount. The appellants appealed against the vacation of suspension of sentence.  The appeal was dismissed by the High Court and the appellants appealed under Section 482 of Cr. P. C. to the Supreme Court.

The appellants contend that the suspension of sentence cannot be vacated merely for the reason of non-payment of 25% claim amount. The appellants contended that Section 148 and Section 143A of the Negotiable Instruments Act are only prospective and that the same cannot be apllied to the complaint that was filed before the notification of the sections. The appellants relied on the judgements of G. J. Raja v. Tejraj Surana, Ajay Vinochandra Shah v. State of Maharashtra and Vivek Sahni v. Kotak Mahindra Bank.

The judgment in G.J. Raja’s case which was pertinent to the judgement observed that:

“ We must, however, advert to a decision of this Court in Surinder Singh Deswal and Ors. v. Virender Gandhi (2019) 8 SCALE 445 where Section 148 of the Act which was also introduced by the same Amendment Act 20 of 2018 from 01.09.2018 was held by this Court to be retrospective in operation. As against Section 143A of the Act which applies at the trial stage that is even before the pronouncement of guilt or order of conviction, Section 148 of the Act applies at the appellate stage where the Accused is already found guilty of the offence Under Section 138 of the Act. It may be stated that there is no provision in Section 148 of the Act which is similar to Sub-Section (5) of Section 143A of the Act. However, as a matter of fact, no such provision akin to Sub-section (5) of Section 143A was required as Sections 421 and 357 of the Code, which apply post-conviction, are adequate to take care of such requirements. In that sense said Section 148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the Act. Therefore, the decision of this Court in Surinder Singh Deswal (2007) 13 SCC 492 stands on a different footing.”

The Hon’ble Supreme Court held that: “It is for the Appellate Court who has granted suspension of sentence to take call on non-compliance and take appropriate decision. What order is to be passed by the Appellate Court in such circumstances is for the Appellate Court to consider and decide. However, non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated.”

Insofar as the judgment of the Bombay High Court in Ajay Vinodchandra Shah (supra) which has been relied by the learned counsel for the appellant, it is sufficient to observe that the High Court did not have benefit of judgment of this Court  in Surinder Singh Deswal’s case. The judgment of the Bombay High Court was delivered on 14.03.2019 whereas judgment of this Court in appellants’ case is dated 29.05.2019. In view of the law laid down by this Court in Surinder Singh Deswal’s case decided on 29.05.2019, the judgment of Bombay High Court in Ajay Vinodchandra Shah’s case cannot be said to be a good law insofar as consequences of non-compliance of condition of suspension of sentence is concerned.

The Supreme Court dismissed the appeal for the lack of merits.

View/ Download the Judgment:Surinder Singh Deswal v. Virender Gandhi

–  Vignesh Hariharan. R

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