K.V. Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941** **Crl.Rev.Pet.No.1404 OF 2019** **AGAINST THE ORDER IN CRA 71/2019 OF DISTRICT COURT& SESSIONS COURT,PATHANAMTHITTA** **AGAINST THE JUDGMENT IN ST 137/2017 OF CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA** ## **REVISION PETITIONER/PETITIONER/ACCUSED:** **K.V.MATHEW AGED 55 YEARS THEVERVELIL KANDAMPLAKKAL HOUSE, CHERUKOLE P.O, KOZHENCHERRY.** **BY ADVS. SRI.VISHAK.K.JOHNSON SRI.S.S.ARAVIND SRI.S.NITHIN ANCHAL** ## **RESPONDENTS/COMPLAINANT AND STATE:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 PRASAD.T, AGED 51 YEARS S/O THANKAPPAN, KAILATH HOUSE, AYROOR SOUTH P.O, AYROOR-689 611.** **BY ADVS.** **R1 SRI P N SUMODU-PUBLIC PROSECUTOR R2 SRI.JOSEPH P.ALEX R2 SRI.MANU SANKAR P.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.1404 OF 2019 2** ## **O R D E R** The petitioner is the accused in the case S.T.No.137/2017 on the file of the Court of the Chief Judicial Magistrate, Pathanamthitta. 2. The aforesaid case was instituted upon the complaint filed by the second respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 3. After trial, the learned Magistrate found the petitioner guilty of the offence punishable under Section 138 of the Act and convicted him thereunder and sentenced him to simple imprisonment for a period of three months and also directed him to pay an amount of Rs.9,00,000/- as compensation to the complainant and also ordered that, in default of payment of compensation, he shall undergo simple imprisonment for a period of one month. 4. The petitioner filed Crl.Appeal.No.71/2019 before the Court of Session, Pathanamthitta challenging the conviction entered against him and the sentence imposed on him by the trial court. The appeal was admitted by the Sessions Court. ## **Crl.Rev.Pet.No.1404 OF 2019 3** 5. The petitioner filed Crl.M.P.No.4740/2019 for suspension of the sentence imposed on him by the trial court. Learned Sessions Judge allowed the aforesaid application and passed Annexure-A1 order, which reads as follows : “Heard the counsel, perused the affidavit. Execution of the sentence passed by the lower court is hereby suspended on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the lower court. In addition to that the appellant/accused shall deposit 20% of the compensation amount ordered by the lower court within sixty days from this date. Return of notice to 29.11.2019.” 6. Annexure-A1 order is assailed by the petitioner on the ground that the direction given by the Sessions Court to deposit 20% of the amount of compensation awarded by the trial court is illegal since he has filed insolvency petition as I.P.No.1/2017 before the Sub Court, Pathanamthitta. 7. Heard learned counsel for the petitioner and the second respondent. 8. Learned counsel for the petitioner contended that Annexure-A1 order passed by the learned Sessions Judge, ## **Crl.Rev.Pet.No.1404 OF 2019 4** directing the petitioner to deposit 20% of the amount of compensation awarded by the trial court, is illegal. Learned counsel would contend that the petitioner has instituted insolvency petition as I.P.No.1/2017 before the Sub Court, Pathanamthitta, and therefore, the Sessions Court should not have made a direction for deposit of amount under Section 148(1) of the Act. 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, the appellate court may order the appellant to deposit such sum which shall be a minimum of 20% 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 under Section 138 of the Act, 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 ## **Crl.Rev.Pet.No.1404 OF 2019 5** of fine or compensation can only by way of an exception for which special reasons are to be assigned. 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 an amount 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 Cr.P.C to suspend the sentence (See **Surinder Singh Deswal v. Virender Gandhi : AIR 2019 SC 2956** ). 11. Therefore, in normal course, while suspending the sentence imposed on an accused by the trial court, the appellate court shall direct deposit of 20% of the amount of compensation awarded by the trial court. The appellate court is not obliged to record any special reasons for issuing a direction under Section 148(1) of the Act to the appellant to deposit 20% of the amount of compensation awarded by the trial court. It is only when the appellate court does not make a direction under Section 148(1) of the Act for deposit of the amount that it has to assign special reasons. In fact, exercise of the power under Section 148(1) of the Act is the rule and nonexercise of such power is the exception. ## **Crl.Rev.Pet.No.1404 OF 2019 6** 12. The contention of the learned counsel for the petitioner is that since the petitioner has instituted insolvency proceedings the appellate court should not have made a direction under Section 148(1) of the Act. Learned counsel for the second respondent invited the attention of this Court to the decision of the Andhra Pradesh High Court in **Sri.Srinivasa Trading Company v. State of A.P (1998 Cri.L.J 903)** and the decisions of the Madras High Court in **Kannan v. Santhanam (1999 Cri.L.J 2236)** and **Thangaraj v. Murugesan (1999 Cri.L.J 3436)** and contended that mere pendency of insolvency proceedings instituted by the drawer of a cheque would not disentitle the payee of a cheque to initiate and continue criminal proceedings against the drawer for an offence punishable under Section 138 of the Act. 13. There is no merit in the contention of the petitioner that the appellate court should not have made a direction to him deposit 20% of the compensation awarded by the trial court for the reason that he has filed insolvency petition. There is no such restriction imposed on the appellate court by the statute. 14. Even if filing of insolvency petition by the petitioner had to be taken as a special reason for not making a direction ## **Crl.Rev.Pet.No.1404 OF 2019 7** under Section 148(1) of the Act to deposit 20% of the amount of compensation, the appellant/accused who filed the application for suspension of sentence should have pointed out such a circumstance in that application. Then the appellate court could have considered whether such circumstance constitutes a special reason for not making any direction under Section 148(1) of the Act. In the instant case, admittedly, the petitioner had not pointed out any special circumstance or reason before the appellate court for not making a direction under Section 148(1) of the Act for deposit of 20% of the amount of compensation awarded by the trial court. 15. The position of law with regard to retrospective operation of Section 148 of the Act has been reiterated by the Apex Court in a very recent decision in **Surinder Singh Deswal v. Virender Gandhi (judgment dated 08.01.2020 in Crl. 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 of the Act 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 the suspension of sentence stands vacated. ## **Crl.Rev.Pet.No.1404 OF 2019 8** 16. 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 Annexure-A1 order passed by the learned Sessions Judge. There is no merit in the revision petition and it is liable to be dismissed. Consequently, the revision petition is dismissed. **Sd/-** **R. NARAYANA PISHARADI** **JUDGE** **LEK** **Crl.Rev.Pet.No.1404 OF 2019 9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE ORDER PASSED BY THE SESSIONS COURT, PATHANMTHITTA DATED 19.10.2019 IN CRL.APPEAL 71/2019** **ANNEXURE A2 TRUE COPY OF THE MEMORANDUM IN IP NO 1/.2017 ON THE FILES OF THE SUB COURT PATHANAMTHITTA DATED 21.7.2017 ANNEXURE A3 TRUE COPY OF THE JUDGMENT IN ST NO 137/2017 ON THE FILES OF THE CHIEF JUDICIAL MAGISTRATES COURT, PATHANMTHITTA**