Ambili R. v. Sree Gokulam Chit and Finance Company (P) Ltd; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941** ## **OP(Crl.).No.8 OF 2020** **AGAINST THE ORDER IN CRL.M.P.NO.6663/2019 IN CRA 312/2019 DATED 08-11-2019 OF SESSIONS COURT,THALASSERY** ## **PETITIONER/ACCUSED:** **AMBILI.R AGED 45 YEARS W/O. MADHUSOODANAN, BHAVANA, PARAD, KUTTIKKOL P.O. THALIPARAMBA, KANNUR 670 141.** **BY ADVS. SRI.P.CHANDRASEKHAR SRI.K.K.MOHAMED RAVUF SRI.D.SREEKANTH SHRI. ANOOP KRISHNA** ## **RESPONDENTS/COMPLAINANT AND STATE** **1 SREE GOKULAM CHIT AND FINANCE COMPANY (P) LTD PUTHUTHERU BRANCH REPRESENTED BY ITS ASSISTANT ARREARS MANGER K. RAJAN, S/O. CHOYI, SREE GOKULAM CHIT AND FINANCE COMPANY (P) LTD, SHEREEN BUILDING T.V. ROAD, KANNUR 670 001.** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** ## **SRI AJITH MURALI-PP** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08.01.2020, THE COURT ON 10.01.2020 DELIVERED THE FOLLOWING:** O.P.(Crl) No.08/2020 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ O.P.(Crl) No.8 of 2020 ----------------------------------------------------Dated this the 10[th] day of January, 2020 ## **J U D G M E N T** This original petition is filed under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P4 order passed by the Court of Session, Thalassery. 2. The petitioner is the accused in the case S.T.No.98/2017 on the file of the Court of the Judicial First Class Magistrate-V, Kannur. 3. The aforesaid case was instituted upon the complaint filed by the first respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). After trial, the learned Magistrate found the petitioner guilty of the offence under Section 138 of the Act and convicted her thereunder and sentenced her to imprisonment till the rising of O.P.(Crl) No.08/2020 3 the court and also directed her to pay an amount of Rs.67,65,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of fifteen days. 4. The petitioner filed appeal before the Court of Session, Thalassery challenging the conviction entered against her and the sentence imposed on her by the trial court. The appeal was admitted by the Sessions Court. 5. The petitioner had filed Ext.P3 application for suspension of the sentence imposed on her by the trial court. Learned Sessions Judge allowed Ext.P3 application as per Ext.P4 order, which reads as follows: _“Heard the appellant. Sentence suspended on deposit of 20% of the compensation ordered by the trial court and executing a bond for Rs.1,00,000/- (Rupees One Lakh only) together with 2 solvent sureties each for a like sum. Two months time granted for deposit (In view of decision reported in 2019(3) KHC 355(SC)”._ 6. Ext.P4 order is assailed by the petitioner on the ground O.P.(Crl) No.08/2020 4 that it has been passed by the court below without considering whether there were special reasons for not issuing a direction to her to deposit 20% of the amount of compensation awarded by the trial court. 7. Heard the learned counsel for the petitioner. 8. Learned counsel for the petitioner contended that the appellate court has passed Ext.P4 order mechanically. Learned counsel has contended that the appellate court did not consider whether the sentence imposed on the petitioner could be suspended without making a direction for deposit of 20% of the amount of compensation awarded by the trial court. Learned counsel would contend that the appellate court did not consider whether there were any special reasons for not issuing a direction to the petitioner to deposit 20% of the amount of compensation. 9. Section 148 (1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer against conviction under Section 138, O.P.(Crl) No.08/2020 5 the appellate court may order the appellant to deposit such sum which shall be a minimum of twenty percent of the fine or compensation awarded by the trial court. 10. Section 148 was introduced in the Act with effect from 01.09.2018. Section 148 (1) of the Act empowers the court, in which an accused has filed appeal against conviction, to direct him to deposit such sum which shall be a minimum of 20% of the amount of fine or compensation awarded by the trial court. Though the expression used in Section 148(1) of the Act is "may", it is generally to be construed as a "rule" or "shall". Absence of a direction by the appellate court to deposit 20% of the amount of fine or compensation can only by way of exception for which special reasons are to be assigned. Section 148 of the 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 Cr.P.C to suspend the sentence O.P.(Crl) No.08/2020 6 (See **Surinder Singh Deswal v. Virender Gandhi : AIR 2019 SC 2956** ). Therefore, in normal course, while suspending the sentence imposed on the accused by the trial court, the appellate court shall direct deposit of 20% of the amount of compensation awarded by the trial court. It means that the appellate court is not obliged to record any special reasons for issuing a direction under Section 148 of the Act to the appellant to deposit 20% of the amount of compensation awarded by the trial court. 11. Learned counsel for the petitioner pointed out that, in **Surinder Singh Deswal** (supra) itself, the Apex Court has indicated that a direction to deposit 20% of the amount of compensation can be dispensed with by the appellate court under exceptional circumstances on assigning special reasons. True, the Apex Court has held so. But, it does not mean that, when the appellate court makes a direction to deposit the amount, it has to record reasons for doing so. It is when the appellate court does not make a direction under Section 148 of the Act for deposit of the amount that it has to assign special reasons. In fact, exercise of the power under Section 148 of the Act is the rule and non- O.P.(Crl) No.08/2020 7 exercise of such power is the exception. 12. It is not necessary for the appellate court to suo motu find out special reasons for not making a direction under Section 148(1) of the Act. The appellate court is not required to minutely assess the merits of the appeal and find out such special reasons. It is for the appellant-accused to point out to the appellate court the special circumstances, if any existing, for not making a direction under Section 148(1) of the Act. The appellant-accused can mention such special reasons or circumstances, if any, in the application filed by him for suspension of sentence. Then, the appellate court would be able to consider whether such reasons or circumstances pointed out by the appellant constitute special reasons or special circumstances sufficient for not making any direction under Section 148(1) of the Act. 13. In the instant case, the petitioner had not mentioned in Ex.P3 application any special reasons for exempting her from making deposit of amount under Section 148(1) of the Act. It was only mentioned in Ex.P3 application that the cause of action for filing the complaint arose prior to the date on which Section O.P.(Crl) No.08/2020 8 148 of the Act came into force. This contention did not merit consideration by the appellate court because it has been categorically held in **Surinder Singh Deswal** (supra) that Section 148 of the Act has got retrospective operation. 14. The position of law with regard to retrospective operation of the provision contained Section 148 of the Act has been re-iterated by the Apex Court in a very recent decision in **Surinder Singh Deswal v. Virender Gandhi (judgment dated 08.01.2020 in Criminal Appeal Nos. 1936-1963 of 2019).** The Apex Court has also held in this decision that, when suspension of sentence is ordered by the appellate court on the condition that deposit under Section 148 shall be made by the appellant and when the direction in that regard is not complied with by the appellant, the appellate court can hold that suspension of sentence stands vacated. 15. In the instant case, the appellate court has directed the petitioner to deposit only the minimum amount, that is, 20% of the amount of compensation awarded by the trial court. I find no illegality or impropriety in Ext.P4 order passed by the appellate O.P.(Crl) No.08/2020 9 court. The petition is liable to be dismissed. 16. The time granted by the appellate court for deposit of the amount has now expired. It is only proper to extend the period for deposit of the amount by the petitioner till the date of expiry of 90 days from the date of Ext.P4 order. 17. In the result, the original petition is dismissed. The petitioner is granted time till 07.02.2020 for depositing the amount mentioned in Ext.P4 order. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/09/01/2020 O.P.(Crl) No.08/2020 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 26.10.2019 IN STC NO. 98/2017 OF THE JFCM COURT (V) KANNUR.** **EXHIBIT P2 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE PETITION FILED UNDER SECTION 389 OF THE CODE OF CIVIL PROCEDURE.** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 08.11.2019 IN CRL.M.P. NO. 6663/2019 IN CRL. A NO. 312/2019 OF THE COURT OF SESSION THALASSERRY.** ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY PS TO JUDGE