Shyma T.K v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **Crl.MC.No.1849 OF 2020(A)** **CRL.M.P.NO.1973/2019 IN CRA 93/2019 OF DISTRICT COURT & SESSIONS JUDGE,KASARAGOD** ## **PETITIONER/APPELLANT:** **SHYMA T.K AGED 31 YEARS W/O PRAMOD NELLITHARA HOUSE, PULLUR VILLAGE, P.O.ANANDASRAM, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADVS. SMT.HEMALATHA SRI.BINU GEORGE** ## **RESPONDENT/STATE:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 SEBASTIAN T.O, AGED 61 YEARS S/O ELIYAMMA, THADATHIL HOUSE, KAHANHGAD VILLAGE, KAHANGAD SOUTH P.O.HOSDURG TALUK, KASARAGOD DISTRICT, PIN-671 531.** ## **SRI. C.K. PRASAD PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.03.2020, THE COURT ON 05.03.2020 PASSED THE FOLLOWING:** Crl.M.C.No.1849/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.1849 of 2020 ---------------------------------------Dated this the 5[th] day of March, 2020 ## **O R D E R** The petitioner is the accused in the case C.C.No.150/2018 on the file of the Court of the Judicial First Class Magistrate-III, Hosdurg. 2. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted her thereunder and sentenced her. The petitioner has not produced copy of the judgment of the trial court. Therefore, it is not known what is the nature of the sentence imposed on her. 3. The petitioner filed Crl.A.No.93/2019 before the Court of Session, Kasaragod challenging the order of conviction and sentence passed against her by the trial court. The Sessions Crl.M.C.No.1849/2020 3 ## Court admitted the appeal. 4. The petitioner had filed Crl.M.P.No.1973/2019 in the appellate court for suspension of the sentence imposed on her by the trial court. As per Annexure-A1 order dated 18.06.2019, the learned Sessions Judge ordered that the sentence imposed on the petitioner by the trial court shall be suspended on the condition that she will deposit 20% of the cheque amount within ninety days from the date of judgment of the trial court and also that, she will execute a bond for Rs.50,000/- with two solvent sureties for the like amount to the satisfaction of the trial court. 5. The petitioner did not comply with the direction made by the appellate court under Section 148(1) of the Act to deposit 20% of the cheque amount within the period specified in Annexure-A1 order. Now, this petition under Section 482 Cr.P.C is filed by her on 02.03.2020, praying that she may be allowed to deposit the amount in the trial court as she is now ready with the amount. It is stated that, she could not deposit the amount in the trial court within the time stipulated by the appellate court, as she was suffering from uterus problems and irregular bleeding Crl.M.C.No.1849/2020 4 for the last one year. 6. Heard learned counsel for the petitioner. 7. Section 148(1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal filed by the drawer against conviction under Section 138 of the Act, 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 provides 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. 8. 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 Crl.M.C.No.1849/2020 5 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 of fine or compensation can only by way of 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 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 Cr.P.C to suspend the sentence (See **Surinder Singh Deswal v. Virender Gandhi : AIR 2019 SC 2956** ). Therefore, in normal course, while suspending the sentence imposed on the accused by the trial court, the appellate court shall direct deposit of 20% of the amount of compensation awarded by the trial court. 9. 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 Crl.M.C.No.1849/2020 6 rule and non-exercise of such power is the exception. 10. In the instant case, the direction given by the appellate court in Annexure-A1 order is to deposit 20% of the cheque amount. The proper direction should have been, to deposit 20% of the fine or compensation awarded by the trial court. However, in this case, the petitioner has no case that the cheque amount and the fine/compensation amount are different. Therefore, the direction made in Annexure-A1 order cannot be found to be illegal on that ground. 11. As per Section 148(2) of the Act, the appellate court is obliged to grant a period of sixty days from the date of the order to deposit the amount. In the instant case, the appellate court granted a total period of ninety days from the date of the judgment of the trial court. This direction is also not proper. The proper direction should have been to deposit 20% of the fine amount or compensation amount within a period of sixty days from the date of the order passed by the appellate court. 12. However, in the instant case, the period of sixty days from the date of Annexure-A1 order is over now. Admittedly, the Crl.M.C.No.1849/2020 7 petitioner did not deposit 20% of the amount of fine or compensation within sixty days from the date of Annexure-A1 order. If the appellant/accused is not able to deposit the amount within sixty days, as per Section 148(2) of the Act, he can approach the appellate court and seek extension of time upto a further period of thirty days, on sufficient cause being shown. In the instant case, the further period of thirty days, which could have been granted by the appellate court, is also over. The petitioner did not deposit the amount even within the period of ninety days from the date of Annexure-A1 order. 13. The petitioner has produced Annexure-A2 prescription given by a doctor to show that she was undergoing treatment and therefore, she could not pay the amount within the period prescribed under the statute. Annexure-A2 prescription is dated 24.06.2019. It only shows that the petitioner was having irregular bleeding. There is no material at all to show that she was suffering from any serious illness. In such circumstances, I find no sufficient ground to invoke the power of this Court under Section 482 Cr.P.C and to extend the time for deposit of the Crl.M.C.No.1849/2020 8 amount which is provided under Section 148(2) of the Act. Consequently, the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.1849/2020 9 ## **APPENDIX** **PETITIONER'S EXHIBITS: ANNEXURE A1 CERTIFIED COPY OF ORDER DATED 18.6.2019 IN CRL MP NO 1973/2019 IN CRL.APPL NO 93/2019 ANNEXURE A2 A TRUE COPY OF THE MEDICAL PRESCRIPTIONS DATED 24.6.2019 ANNEXURE A3 A TRUE COPY OF RADIOLOGY REPORT ISSUED FROM LAXMI MEGHAN SPECIALTY HOSPITAL, DEPARTMENT OF RADIOLOGY DATED 12.7.2019** **RESPONDENTS' EXHIBITS : NIL** TRUE COPY PS TO JUDGE