Rajeev T.P. v. HDFC Ltd. & State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2023-01-05
Court Decision / Holding: Crl.M.C. dismissed; time to deposit extended till 28.02.2023 with direction to deposit; failure to deposit may permit the trial court to proceed under the law.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Rajeev T.P.

Respondents

HDFC Ltd
State of Kerala represented by Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• C.S. Manu
• Dilu Joseph
• C.A. Anupaman
• T.B. Sivaprasad
• C.Y. Vijay Kumar
• Manju E.R.
• Anandhu Satheesh
• Alint Joseph

Counsels for Respondents

• Sanal P. Raj, Public Prosecutor

Case Synopsis & Summary

This Criminal Miscellaneous Case challenges Annexure A‑2, an order dated 29-08-2022 passed in ST No.243 of 2021 by the Judicial First Class Magistrate-II, Kottayam, directing the accused Rajeev T.P. to deposit 20% of the cheque amount within 60 days as a condition for bail under the Negotiable Instruments Act. The petitioner/accused argues that such a deposit is unwarranted and, given his financial incapacity, seeks to set aside the directive. The learned counsel for the petitioner relies on the interpretation of Section 148 of the NI Act and Section 143A, and urges that the word ‘may’ should be construed as ‘shall’ in consonance with the Supreme Court's decision in Surinder Singh Deswal v. Virender Gandhi. The respondents contend that under Section 148(1) of the NI Act, the appellate court may order a minimum deposit of 20% of the fine or compensation; the statutory mechanism requires the amount payable under Section 148 to be deposited under Section 143A; therefore the deposit direction lies within the trial court's power. The Kerala High Court, invoking Article 141, agrees that the ratio in Surinder Singh must guide the interpretation and confirms that the deposit order is permissible. It also notes that Thomas v. State of Kerala adopts the same ratio. Consequently, the petition is dismissed as meritless, though two months’ time to deposit is granted until 28-02-2023, with a warning that failure will permit the trial court to proceed under the law.

Provisions of Law Cited

Section 482 Cr.P.C.Section 148 of the Negotiable Instruments ActSection 143A of the Negotiable Instruments ActArticle 141 of the Constitution of India

Legal Doctrines & Maxims

Interpretation of 'may' to 'shall' in statutory provisions under NI Act (Surinder Singh Deswal v. Virender Gandhi)
Constitutional principle: Article 141 binds courts to follow Supreme Court precedents in decisions

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the deposit order is unwarranted and, due to financial incapacity, should be set aside. He relies on the interpretation that the word 'may' in Section 148 NI Act should be read as 'shall' in line with Surinder Singh Deswal v. Virender Gandhi.

Contentions of Respondents

The State/Prosecutor contends that Section 148(1) of the NI Act permits a minimum 20% deposit of the fine or compensation, and that the 20% deposit under Section 143A is within the trial court's power; hence the order warrants no interference.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Surinder Singh Deswal @ Col. S.S.Deswal & Ors. v. Virender Gandhi	AIR 2019 SC 2956; 2019 (3) KHC 355; ILR 2019 (2) Ker. 713; 2019 (2) KLJ 983; 2019 (8) SCALE 445; 2019 CriLJ 3507; 2019 (11) SCC 341	Positive	The ratio from Surinder Singh Deswal regarding interpreting 'may' as 'shall' in NI Act provisions is applied and followed by the High Court in this case.
Thomas v. State of Kerala & anr.	2020 (1) Crimes(HC) 582	Positive	The Court states it followed the Surinder Singh ratio as adopted in this decision as well.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA,** **1944** **CRL.MC NO. 2 OF 2023** **AGAINST THE ORDER DATED 29.08.2022 IN ST NO.243/2021 OF** **JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOTTAYAM** **PETITIONER/ACCUSED :** **RAJEEV T.P. AGED 43 YEARS S/O T. N. PAPPU, APARTMENT NO - 4D, 4TH FLOOR, CHOICE PARADISE APARTMENTS, NEAR CHOICE SCHOOL, TRIPUNITHURA, ERNAKULAM, PIN-682301, NOW RESIDING AT KRISHNAKRIPA, PILAPPUZHA, HARIPPAD P.O., ALLEPPEY, PIN - 690514** **BY ADVS. C.S.MANU DILU JOSEPH C.A.ANUPAMAN T.B.SIVAPRASAD C.Y.VIJAY KUMAR MANJU E.R. ANANDHU SATHEESH ALINT JOSEPH** ## **RESPONDENTS/COMPLAINANT & THE STATE:** **1 HDFC LTD, RETAIL ASSETS COLLECTION, VETTOOR BUILDINGS, OPP. PUBLIC LIBRARY, SASTRI ROAD, KOTTAYAM-686001, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER AND DEPUTY MANAGER SHEMEER J., AGED 32, S/O.SHARAFUDHEEN (EMP.CODE NO.S37029)** Crl.M.C.No.2 of 2023 ..2.. **HAVING HIS PERMANENT ADDRESS AT JASMIN MANZIL, IRUMBA, ARUVIKKARA, TRIVANDRUM – 695564.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **BY SRI.SANAL P RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.2 of 2023 ..3.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------Crl.M.C.No.2 of 2023 -------------------------------------------------------Dated this the 5[th] day of January, 2023** ## **O R D E R** This is a petition filed under Section 482 of the Code of Criminal Procedure (herein referred to as 'Cr.P.C’ for short) challenging Annexure A-2 order in S.T.No.243 of 2021 on the file of the Judicial First Class Magistrate's Court-II, Kottayam. The petitioner is the accused in the said case. 2. As per the order impugned, the learned Magistrate while granting bail to the accused in S.T.No.243 of 2021 on the file of the Judicial First Class Magistrate's Court-II, Kottayam, directed the petitioner Crl.M.C.No.2 of 2023 ..4.. to deposit 20% of the cheque amount before the trial Court within 60 days. 3. Aggrieved by the said order, the petitioner has approached this Court. The prayer herein is as under: _“..it is most humbly prayed that this Hon'ble Court may be pleased to set aside Annexure A-2 order to the extent directing the petitioner to deposit 20% of the cheque amount in ST No.243 of 2021 passed by the Court of Judicial First Class Magistrate's CourtII, Kottayam.”_ 4. At the time of argument, the learned counsel for the petitioner pressed for the relief highlighting incapacity of the petitioner to deposit the amount. 5. In this matter the legal position as to deposit of the amount is not in dispute. In the decision Crl.M.C.No.2 of 2023 ..5.. of the Apex Court in [2019 (3) KHC 355 : 2019 (2) KLD 1 : 2019 (2) KLT 985 : ILR 2019 (2) Ker. 713 : 2019 (2) KLJ 983 : 2019 (8) SCALE 445 : AIR 2019 SC 2956 : 2019 CriLJ 3507 : 2029 (11) SCC 341], **Surinder Singh Deswal @ Col. S.S.Deswal & Ors. v. Virender Gandhi** held that the word `may' used in Section 148 of the Negotiable Instruments Act (hereinafter referred to as `N.I Act' for convenience) to be construed as a `rule' or `shall'. This decision was rendered while considering the power of the appellate court under Section 148 of the NI Act. It is true that the trial court ordered to deposit 20% of the cheque amount as provided under Section 143A of the NI Act, wherein also the statutory wording is 'may'. Since the appellate court interpreted the word 'may' as 'shall' or 'rule' in **Surinder Singh** 's case (supra), the said ratio would Crl.M.C.No.2 of 2023 **==> picture [20 x 9] intentionally omitted <==** apply to Section 143A as well. 6. In view of the above discussion, the contention raised by the learned counsel for the petitioner cannot be considered by this Court and this Court is bound under Article 141 of the Constitution of India to follow the ratio of the Apex Court dealing with the matter in **Surinder Singh** 's case (supra). Therefore, this challenge is found to be meritless and is accordingly dispelled. 7. This Court also followed the said ratio in a decision reported in [2020 (1) Crimes(HC) 582], **Thomas v. State of Kerala & anr.** 8. The legal position is not in dispute that as per the statutory mandate under Section 148 of the N.I Act, in an appeal filed against conviction for the offence punishable under Section 138 of the N.I. Act, the Crl.M.C.No.2 of 2023 ..7.. appellate court may order the appellant to deposit such sum which shall be a minimum of 20% of the fine amount or compensation awarded by the trial court. It is provided that the amount payable under sub section (1) of Section 148 of the N.I Act, shall be paid by the accused under Section 143-A of the N.I Act. Similar power is conferred upon the trial court under Section 143A of the NI Act 9. Thus it appears that the direction for deposit of 20% of the compensation amount as per the impugned order is within the power of the trial court. Therefore, the order impugned does not require any interference. Accordingly, this Crl.M.C. fails and it is, accordingly, dismissed. Crl.M.C.No.2 of 2023 ..8.. Since the learned counsel for the petitioner sought two months time to deposit the amount, as a matter of leniency, time for deposit is extended till 28.02.2023 with positive direction to the petitioner to effect the deposit in time without fail. On failure to do so, the trial court can proceed under law. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj Crl.M.C.No.2 of 2023 ..9.. ## **APPENDIX OF CRL.MC 2/2023** ## **PETITIONER ANNEXURES** |**Annexure A-1**|**TRUE COPY OF THE COMPLAINT FILED BY**| |---|---| ||**THE 1ST RESPONDENT**| |**Annexure A-1(a)**|**TRUE PHOTOSTAT COPY OF THE AFFIDAVIT**| ||**FILED BY THE 1ST RESPONDENT ALONG WITH**| ||**THE COMPLAINT**| |**Annexure A-2**|**TRUE COPY OF THE ORDER DATED 29-8-2022**| ||**IN ST NO.243 OF 2021 PASSED BY THE**| ||**COURT OF JUDICIAL FIRST CLASS**| ||**MAGISTRATE-II, KOTTAYAM**|