## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI**
**THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947**
## **OP(Crl.).No.592 OF 2019**
**CRA 287/2019 OF Vth ADDITIONAL SESSIONS COURT AT ERNAKULAM**
## **PETITIONER:**
**PREJITH K.B AGED 46 YEARS**
**PROPRIETOR, MAYAMMA EQUIPMENTS AND KIDS CONSULTANCY, NEDUMPARAMBIL HOUSE, NEAR SOFIA SUNSHINE HOUSING COLONY, SASTHAMUGHAL, MAMALA, ERNAKULAM DISTRICT.**
**BY ADV. SRI.VINCENT RAPHAEL**
## **RESPONDENTS:**
**1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM-682 031. 2 JRP ENTERPRISES 35/2876 AND 2877, NEAR PALLATH ROAD, THAMMANAM,KCHI-32 REPRESENTED BY MANAGING PARTNER JAYASHANKER T., AGED 47/11 YEARS, S/O. MADHAVA PANICKER, 33/1541A, THEMPAT (H), PRIYADARSHINI ROAD, CHAKKARAPARAMBU, VENNALA, KOCHI-682 028.**
**THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 03.02.2020, THE COURT ON 06.02.2020 DELIVERED THE FOLLOWING:**
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## **R.NARAYANA PISHARADI, J**
************************
O.P.(Crl) No.592 of 2019
----------------------------------------------Dated this the 6[th] day of February, 2020
## **J U D G M E N T**
The petitioner is the accused in the case C.C.No.2442/2015 on the file of the Court of the Judicial First Class Magistrate, Thripunithura.
2. The trial court found the petitioner guilty of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder and sentenced him to imprisonment till the rising of the court and to pay a fine of Rs.5,39,500/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. The trial court also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant.
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3. The petitioner filed Crl.A.No.287/2019 before the Court of Session, Ernakulam challenging the order of conviction and sentence passed against him by the trial court. The Sessions Court admitted the appeal filed by the petitioner.
4. The petitioner had filed an application as Crl.M.P.No.2370/2019 for suspension of the sentence imposed on him by the trial court. As per Ext.P4 order dated 27.09.2019, the learned Sessions Judge suspended the sentence against the petitioner. Ext.P4 order reads as follows:
_“Heard. The execution of the sentence shall stand suspended and bail granted to the petitioner on condition that the accused shall execute a bond for Rs.2,00,000/- with two solvent sureties for the like sum each to the satisfaction of the court below and on further condition that the petitioner shall deposit a sum of Rs.1,10,000/- before the court below within sixty days from today.”_
5. The petitioner filed Ext.P5 application before the
appellate court for granting extension of time to deposit the amount in compliance with Ext.P4 order. As per Ext.P6 order
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dated 22.11.2019, the learned Additional Sessions Judge extended the time for deposit of the amount for a period of thirty days.
6. The petitioner has now approached this Court with this original petition filed under Article 227 of the Constitution of India seeking the following relief:
_“To set aside the order of putting conditions of cancellation of bail or suspension of sentence in the event of non payment of Rs.1,10,000/- as per condition No.2 in Ext.P4 order until disposal of Ext.P2 Criminal Appeal on merits and issue appropriate directions in this regard to Vth additional Sessions court, Ernakulam for further communication to the JFCM Thripunithura in C.C.No.2442/2015.”_
7. Heard learned counsel for the petitioner.
8. The order directing the petitioner to deposit an amount of Rs.1,10,000/- was evidently passed by the learned Sessions Judge as per Section 148(1) of the Act. Section 148(1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer
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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. Section 148(2) of the Act states that, the amount referred to in sub-Section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the court, on sufficient cause being shown by the appellant.
9. 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 amount which shall be a minimum of 20% of the amount of fine or compensation which was awarded by the trial court.
10. The provision contained in Section 148(1) of the Act is retrospective in operation. The expression used in Section 148(1) of the Act is “may”. But, it is generally to be construed as “rule” or “shall”. The appellate court can pass an order for deposit of the amount under Section 148(1) of the Act either on
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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. The issue with regard to the effect or consequences of non-compliance with an order passed under Section 148(1) of the Act on an order of suspension of sentence has been very recently considered by the Supreme Court in **Surinder Singh Deswal v. Virender Gandhi : 2020 (1) KLT 417 (SC)** . In this decision, the Supreme Court has observed as follows:
_“The second round of litigation which was initiated by the appellant by filing application under Section 482 Cr.P.C. was against the order dated 20.07.2019 passed by the Additional Sessions Judge, Panchkula by which Additional Sessions Judge held that the appellant having not complied with the direction dated 01.12.2018 to deposit 25% of the amount of compensation, the order of suspension of sentence shall be deemed to have been vacated. The order dated 20.07.2019 was an order passed by the Additional Sessions Judge on account of failure of the appellant to deposit 25% of the amount of_
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_compensation. The suspension of sentence on 01.12.2018 was subject to the condition of deposit of 25% of the amount of compensation, when the condition for suspension of sentence was not complied with, learned Additional Sessions Judge was right in taking the view that order of suspension of sentence shall be deemed to have been vacated. Challenge to order dated 20.07.2019 has rightly been repelled by the High Court by its elaborate and well considered judgment dated 10.09.2019._
(emphasis supplied).
## The Supreme Court proceeded further and held as follows:
_“When suspension of sentence by the trial - court is granted on a condition, non compliance of the condition has adverse effect on the continuance of suspension of sentence. The Court which has suspended the sentence on a condition, after noticing non-compliance of the condition can very well hold that the suspension of sentence - stands vacated due to non compliance. The order of the Additional Sessions Judge declaring that due - to non compliance of condition of deposit of 25% of the amount of compensation, suspension of sentence stands vacated is well within the jurisdiction of the Sessions Court and no error has been committed by the Additional Sessions Judge_
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_in passing the order dated 20.07.2019._
_It is for the Appellate court who has granted suspension of sentence to take call on noncompliance 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.”_
## (emphasis supplied).
12. The question of law agitated by the petitioner in this petition has been concluded by the Supreme Court in the aforesaid second judgment in **Surinder Singh Deswal** (supra). In the light of the aforesaid decision of the Supreme Court, the petitioner is not entitled to get any relief in this original petition. Consequently, the original petition is dismissed.
(sd/-)
## **R.NARAYANA PISHARADI, JUDGE**
jsr
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**EXHIBIT P1**
**TRUE PHOTOSTAT COPY OF THE JUDGMENT AND CONVICTION IN C.C.NO.2442/2015 OF THE HON'BLE JUDICIAL FIRST MAGISTRATE COURT THRIPPUNITHURA DATED 27.8.2019.**
- **EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE CRL.APPEAL NO.287/2019 FILED BEFORE THE HON'BLE SESSIONS COURT ERNAKULAM.**
- **EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE CRL.M.P.NO.2370/2019 FILED TO SUSPEND SENTENCE.**
- **EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE ORDER OF THE HON'BLE SESSIONS COURT ERNAKULAM DATED 27.9.2019 IN CRL.M.P.NO.2370/2019.**
**EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE CRL.M.P.NO.2847/2019 DATED TO WAVE THE 2ND CONDITION.**
**EXHIBIT P6 CERTIFIED COPY OF THE ORDER DATED 22.11.2019 IN CRL.M.P.NO.2847/2019.**
RESPONDENTS' EXHIBITS: NIL
TRUE COPY
PS TO JUDGE
