Kunhamammed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **Crl.MC.No.462 OF 2020(G)** **AGAINST THE ORDER DATED 14.11.2019 PASSED BY THE SESSIONS COURT, MANJERI IN CRL.M.P.No:2624/2019 IN CRL.A. No:199/2019)** ## **PETITIONER:** **KUNHAHAMMED AGED 49 YEARS S/O. KUNHIMOHAMMAD, KAKKATTIL HOUSE, KEEZHATTUR, PATTIKKAD P.O, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SMT.M.B.SHYNI SRI.DEEPAK RAJ** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031 2 SAIDALAVI, S/O. MANGARATHODI UMAR HAJI (LATE) PADINJARAMANNA, KOOTTILANGADI AMSOM, KADUKOOR DESOM, MALAPPURAM DISTRICT, PIN 676 341** ## **SRI AJITH MURALI-PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.462 OF 2020** **2** ## **ORDER** This is a petition filed under Section 482 Cr.P.C challenging the legality and propriety of Annexure-4 order passed by the Court of Session, Manjeri. 2. The petitioner is the accused in the case S.T. No.766/2016 on the file of the Court of the Judicial First Class Magistrate, Malappuram. 3. The aforesaid case was instituted upon the complaint filed by the second respondent against the petitioner for an offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') 4. Learned Magistrate found the petitioner guilty of the offence punishable under Section 138 of the Act and convicted him thereunder and sentenced him to imprisonment till the rising of the court and also directed him to pay an amount of Rs.6,00,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of one month. **Crl.MC.No.462 OF 2020** **3** 5. The petitioner filed Crl. Appeal No.199/2019 before the Court of Session, Manjeri challenging the conviction entered against and the sentence imposed on him by the trial court . The appeal was admitted by the Sessions Court. 6. The petitioner had filed Annexure-3 application for suspension of sentence imposed on him by the trial court. Learned Additional Sessions Judge allowed Annexure-3 application as per Annexure-4 order, which reads as follows: _“Heard the petitioner. Perused the judgment under challenge and the affidavit in support of this petition. It appears that the petitioner has an arguable case. Therefore, appeal is admitted. Having considered the facts of the case as above, the sentence imposed by the court below shall stand suspended and the petitioner shall be enlarged on bail on condition that the petitioner/appellant shall execute bond for Rs.25,000/- each by himself and by two solvent sureties to the satisfaction of the court below within 30 days and further deposit 20% of the cheque amount”._ **Crl.MC.No.462 OF 2020** **4** 7. The direction made by the appellate court in Annexure-4 order that, the petitioner shall deposit 20% of the cheque amount, is challenged by the petitioner on the ground that the appellate court was not competent to pass such an order as per Section 143A of the Act. 8. Heard learned counsel for the petitioner. 9. The challenge made to Annexure-4 order by the petitioner on the basis that Section 143A of the Act has no retrospective operation is misplaced. The appellate court has passed the order not under Section 143A of the Act but under Section 148 of the Act. 10. Section 148(1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, in an appeal by the drawer against conviction under Section 138, 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. 11. 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 **Crl.MC.No.462 OF 2020** **5** under Section 138 of the Act, to direct him to deposit such sum which shall be a minimum of twenty percent of the amount of the fine or compensation awarded by the trial court. Section 148 of the Act has retrospective operation. The provision contained in Section 148(1) of the Act confers power upon the appellate court to pass an order pending appeal to direct the appellant/accused to deposit a sum which shall be not less than 20% of the fine or compensation either on an application filed by the original complainant or on the application filed by the appellant/accused under Section 389 Cr.P.C. for suspension of sentence (See **Surinder Singh Deswal v. Virender Gandhi : AIR 2019 SC 2956** ). 12. In **Ambili v. Sree Gokulam Chit and Finance Company (P) Limited (2020 (1) KLT 275)** , this Court has followed the aforesaid decision of the Supreme Court and held that exercise of the power under Section 148 of the Act is the rule and non-exercise of such power is the exception. 13. Very recently, in **Surinder Singh Deswal v. Virender Gandhi : (2020 (1) KHC 309)** , the Supreme Court has reiterated that Section 148 of the Act is retrospective in **Crl.MC.No.462 OF 2020** **6** operation. Moreover, the Supreme 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. 14. In the aforesaid circumstances, I find no illegality or impropriety in Annexure-4 order passed by the learned Additional Sessions Judge directing the petitioner to deposit 20% of the amount of the compensation awarded by the lower court as a condition for suspension of sentence imposed on the petitioner by the trial court. It is to be noted that the appellate court has directed the petitioner to deposit only the minimum amount, that is, 20% of the compensation. 15. However, on a perusal of Annexure-4 order, I find that the appellate court has committed an illegality in not granting the petitioner sixty days time as provided under Section 148(2) of the Act for deposit of the amount. The appellate court has granted only a period of thirty days for deposit of the amount. The period of sixty days has now **Crl.MC.No.462 OF 2020** **7** expired. Considering these aspects, I find that it is only proper to grant the petitioner a period of thirty days from today to deposit the amount ordered by the appellate court as per Annexure-4 order. 16. In the result, the petition is dismissed. However, the petitioner is granted a period of thirty days from today for depositing the amount of 20% of the amount of compensation awarded by the trial court in compliance with Annexure-4 order. If the petitioner fails to deposit such amount within the extended period, the appellate court is at liberty to take appropriate steps as observed by the Supreme Court in **Surinder Singh Deswal v. Virender Gandhi : (2020 (1) KHC 309).** ## **Sd/-** ## **R. NARAYANA PISHARADI** **JUDGE** sms **Crl.MC.No.462 OF 2020** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 A TRUE COPY OF THE JUDGMENT DATED 16/10/2019 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM IN S.T NO. 766/2016** **ANNEXURE 2 A TRUE COPY OF THE MEMORANDUM OF CRIMINAL APPEAL SUBMITTED BY THE PETITIONER BEFORE THE SESSIONS COURT, MANJERI IN CRL. APPEAL NO. 199/2019** **ANNEXURE 3 A TRUE COPY OF THE CRL.M.P NO. 2624/2019 IN CRL. APPEAL NO. 199/2019 FILED UNDER SECTION 389(1) OF THE CODE OF CRIMINAL PROCEDURE, 1973 BEFORE THE HON'BLE SESSIONS COURT, MANJERI** **ANNEXURE 4 CERTIFIED COPY OF THE IMPUGNED ORDER DATED 14-11-2019 IN CRLMP NO. 2624/2019 IN CRL. APPEAL NO. 199/2019 BY THE SESSIONS COURT, MANJEERI.**