K. Sivadasan v. Sudharma Sadanandan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944 OP(CRL.) NO. 149 OF 2022 ``` ``` AGAINST THE ORDER DATED 23.03.2022 IN CRL.M.P.NO.677/2022 IN CRL.APPEAL NO.94/2018 OF ADDITIONAL DISTRICT & SESSIONS COURT - III, PATHANAMTHITTA ``` ## **`PETITIONER/RESPONDENT/APPELLANT/ACCUSED:`** ``` K.SIVADASAN, S/O LATE KUTTAPPAN, AGED 53 YEARS, KANJIRAVILA PUTHENVEEDU THAKADIYETHUMUKKU MALLASHERY P.O, PRADAMDOM VILLAGE, KONNI TALUK, PATHANAMTHITTA, PIN – 689 646 ``` ``` BY ADVS.SRI.ARUN.B.VARGHESE SMT.VARNA MANOJ SMT.AISWARYA V.S. ``` ## **`RESPONDENT/PETITIONER/RESPONDENT/COMPLAINANT:`** ``` SUDHARMA SADANANDAN, W/O.SADANANDAN, AGED 52 YEARS SS COTTAGE(SARATH NIVAS) VAYALA VADAKKU, NARIYAPURAM P.O., KONNI TALUK, PATHANAMTHITTA DISTRICT, PIN – 689 513 ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 05.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P(Crl.) No.149 of 2022 2 ## **`JUDGMENT`** ## **`Dated this the 05[th] day of April, 2022`** This Original Petition is filed under Article 227 of the Constitution of India seeking for the following reliefs: “(1) To call for the records leading to Exhibit P7 order and quash Exhibit P7 order in Crl.M.P.No:677/2022 in Crl A No:94/2018 of the Additional District and Sessions Judge-III Pathanamthitta. (2) Issue such other appropriate order or direction that may be deemed to be just and equitable in the facts and circumstance of the case.” 2. An order passed by Additional District and Sessions Court III, Pathanamthitta, (for short ‘the appellate court’), copy of which is produced alongwith the petition on hand as Ext.P7 is sought to be quashed. The petitioner is the respondent and the respondent is the petitioner in Crl.M.P.No.677/2022 filed in Crl.Appeal No.94/2018 pending on the files of Additional District and Sessions Court III, Pathanamthitta. S.T.No.229/2014 was filed against the petitioner alleging commission of an offence punishable O.P(Crl.) No.149 of 2022 3 under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’). The reason behind alleging such an offence was that the cheque issued by him was bounced for the reason ‘funds insufficient’. Despite issuance of notice, the amount demanded was not paid and thereupon prosecution was initiated. A judgment was passed by the trial court after holding trial, convicting the petitioner for an offence punishable under Section 138 NI Act. 3. The judgment was assailed in Crl.Appeal No.94/2018 wherein Crl.M.P.No.4422/2018 was filed seeking for suspension of execution of sentence. The appellate court allowed the application and suspended the execution of the sentence solely on condition of execution of a bond by him for Rs.2,00,000/- with two solvent sureties. Accordingly the petitioner has executed a bond with two solvent sureties for the sum ordered and consequently, the execution of the sentence imposed by the judgment under challenge was suspended. Later on 22.07.2019, the appellate court passed an order suo moto directing the petitioner to deposit 20% of the fine amount in Crl.M.P.No.4422/2018, copy which is produced alongwith the petition on hand as Ext.P2. O.P(Crl.) No.149 of 2022 4 4. On 07.08.2019, the petitioner has filed an application as Crl.M.P.No.3762/2019, copy of which is produced alongwith the petition on hand as Ext.P3 seeking to amend the direction to deposit 20% of the fine amount holding that, the petitioner is not liable to remit the same, the cheque being dated 29.05.2014. 5. In the meantime, Crl.M.P.No.677/2022 was filed by the respondent seeking for a direction to Chief Judicial Magistrate Court, Pathanamthitta to execute the sentence imposed on the petitioner vide judgment dated 04.10.2018 in S.T.No.229/2014, which is assailed in Crl.Appeal No.94/2018, as if the sentence was not suspended. 6. Counter affidavit was filed by the petitioner in the above application, apprising the factum that the execution of the sentence is already suspended on execution of the bond with sureties in compliance of direction issued by Ext.P1 order. The court held in Crl.M.P.No.677/2022 as follows : “By Applying the principles laid down in 2020 (1) KLT 417 SC and 1987 (1) KLT 488 in the order dated 24.10.18 passed in Crl.MP 4422/18 the condition to deposit 20% of fine amount is to be added. I do so. Appellant shall deposit the 20% of fine amount within 3 days. Call on 28.03.2022.” O.P(Crl.) No.149 of 2022 5 7. The court below relied on Paragraph 9 of the judgment of the Apex Court in SLP (Crl.) Nos.4948-4975 of 2019 which has been extracted in the judgment in **Surinder Singh Deswal v. Virender Gandhi** [2020 (1) KLT 417 (SC)]. “………..amended Section 148 of N.I Act confers power up on the Appellate Court to pass an order pending appeal to direct 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 the Code of Criminal Procedure to suspend the sentence……….” It follows from the above Paragraph that appellate court can pass an order pending appeal directing the appellant to deposit such sum not less than 20% of the fine or the compensation, either in an application filed by the complainant or by the appellant under Section 389 Cr.P.C to suspend the execution of sentence. The Apex Court has also held in the case that when suspension of sentence imposed by the trial court is granted on a condition, non-compliance of the condition has adverse impact in the continuance of suspension of sentence. O.P(Crl.) No.149 of 2022 6 8. An application was filed by the appellant seeking to suspend the execution of sentence as Crl.M.P.No.4422/2018 and in that Ext.P1 order was passed which has taken effect with the execution of the bond with sureties and thus the sentence imposed by the trial court was suspended. The appellate court while invoking jurisdiction under Section 148 NI Act has exercised its discretion to suspend the execution of the sentence solely on condition to execute a bond with sureties and directed to do so by Ext.P1 order and once the party has executed the bond, it is not open to the appellate court to direct further suo moto after 9 months from the date of passing of Ext.P1 order, to deposit 20% of the fine amount as an additional condition. The appellate court is also highly unjustified in directing the petitioner to deposit 20% of fine amount within three days. 9. The appellate court in it’s exercise of criminal jurisdiction ought not to have directed to deposit 20% of fine amount as an additional condition suo moto by reviewing an order passed earlier. The impugned Ext.P2 order and the order passed consequently will not sustain for the reason and are liable to be set aside. O.P(Crl.) No.149 of 2022 7 In the result, O.P(Crl.) is allowed. Exts.P2 and P7 orders are set aside. The appellate court shall hear Crl.Appeal No.94/2018 and dispose it within three months from the date of receipt by it of a certified copy of this judgment. **MARY JOSEPH JUDGE** NAB O.P(Crl.) No.149 of 2022 8 ## **`APPENDIX OF OP(CRL.) 149/2022`** ``` PETITIONER’S EXHIBITS: ``` ``` EXHIBIT P1 ``` ``` A TRUE COPY OF THE ORDER DATED 24.10.2018 IN CRL.MP 4422/2018 IN CRL.A 94/2018 OF THE SESSIONS JUDGE PATHANAMTHITTA ``` ``` EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 22.07.2019 IN CRL.A 94/2018 EXHIBIT P3A TRUE COPY OF THE CRL.MP 3762/2019 IN CRL.A 94/2018 FILED BY THE PETITIONER HEREIN BEFORE THE ADDITIONAL SESSIONS JUDGE- III PATHANAMTHITTA ``` ``` EXHIBIT P4A TRUE COPY OF THE JUDGEMENT DATED 20.10.2021 IN OP(CRL) 26/2020 OF THE HON'BLE HIGH COURT OF KERALA ``` - `EXHIBIT P5 A TRUE COPY OF THE CRL.MP 677/2022 IN CRL.A 94/2018 FILED BY THE RESPONDENT HEREIN BEFORE THE ADDITIONAL DISTRICT AND SESSIONS JUDE PATHANAMTHITTA` - `EXHIBIT P6 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN TO THE PETITION DATED 7.3.2022 BEFORE THE ADDITIONAL SESSIONS JUDGE-III PATHANAMTHITTA` - `EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 23.3.2022 IN CRL.MP 677/2022 IN CRL.A 94/2018 OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE-III PATHANAMTHITTA` ``` EXHIBIT P8A TRUE COPY OF THE CRL.MP 988/2022 IN CRL.A 94/2018 FILED BY THE PETITIONER HEREIN BEFORE THE ADDITIONAL SESSIONS JUDGE-III PATHANAMTHITTA ``` ``` EXHIBIT P9A TRUE COPY OF THE CRL.MP 989/2022 IN CRL.A 94/2018 FILED BY THE PETITIONER HEREIN BEFORE THE ADDITIONAL SESSIONS JUDGE-III PATHANAMTHITTA ``` ``` RESPONDENTS’ EXHIBITS: NIL ``` ``` //TRUE COPY// ``` ``` P A TO JUDGE ```