SREEKANDAN NAIR S. v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **Crl.MC.No.1508 OF 2020(G)** **AGAINST THE ORDER IN CRA 357/2019 OF ADDITIONAL SESSIONS COURT - IV, THALASSERY** **AGAINST THE JUDGMENT IN ST 3225/2015 DATED 23-11-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, TALIPARAMBA** ## **PETITIONER/ACCUSED:** **SREEKANDAN NAIR S., AGED 63 YEARS S/O. SIVASANKARAN NAIR, NHANDADI, POTHAVOOR P.O., KAYYOOR, HOSDURG, KAZARGOD DISTRICT** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENTS/COMPLAINANT/STATE:** **1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 2 MADALAN SUBAIR AGED 51 YEARS S/O. ABDULLA, MUKKOLA, CHIRAVAKKU, TALIPARAMBA P.O., KANNUR DISTRICT-670 102** R1 **SRI C K PRASAD-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.02.2020, THE COURT ON 25.02.2020 PASSED THE FOLLOWING:** **Crl.MC.No.1508 OF 2020(G)** **2** ## **“C.R”** ## **R. NARAYANA PISHARADI, J ---------------------------------------------Crl.M.C.No.1508 of 2020 -----------------------------------------------** Dated this the 25[th] day of February, 2020 ## **O R D E R** Is it legal and proper to order that deposit of amount under Section 148(1) of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') shall be made within a period of less than sixty days? 2. The petitioner is the accused in the case S.T No. 3225/2015 on the file of the Court of the Judicial First Class Magistrate, Taliparamba. 3. The trial court found the petitioner guilty of the offence punishable under Section 138 of the Act and convicted him thereunder. The trial court sentenced the petitioner to undergo simple imprisonment for a period of three months and directed him to pay an amount of Rs.5,00,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of two months. **Crl.MC.No.1508 OF 2020(G)** **3** 4. The petitioner filed appeal before the Court of Session, Thalassery, challenging the order of conviction and sentence passed against him by the trial court. The Sessions Court admitted the appeal. 5. The petitioner had filed an application as Crl.M.P No. 7737/2019 in the appellate court for suspension of the sentence imposed on him by the trial court. As per Annexure-II order dated 24.12.2019, the appellate court suspended the sentence against the petitioner. ## 6. Annexure-II order reads as follows: “Heard counsel for petitioner and sentence suspended on executing bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like amount and on deposit of 20% of compensation amount before trial court within 15 days. Issue notice.” 7. Subsequently, the petitioner filed an application in the appellate court for granting extension of time for depositing the 20% of the amount of compensation. As per Annexure-III order dated 09.01.2020, the appellate court extended the time for depositing the amount for a further period of one month from that date. **Crl.MC.No.1508 OF 2020(G)** **4** 8. The accused has filed this petition under Section 482 Cr.P.C praying that he may be granted a period of three months to comply with the direction made in Annexure-II order for depositing the amount. 9. Heard the learned counsel for the petitioner. 10. Section 148(1) of the Act empowers the court, in which the accused has filed an 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 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. 11. Issuing a direction under Section 148(1) of the Act to deposit a minimum of 20% of the fine amount or compensation amount is mandatory. Such an order can be passed by the appellate court on an application filed by the original complainant or on the application filed by the appellant/accused under Section 389 Cr.P.C to suspend the sentence. Exercise of the power under Section 148(1) of **Crl.MC.No.1508 OF 2020(G)** **5** the Act by the appellate court is the rule. Non-exercise of the power under Section 148(1) of the Act can only be under very exceptional circumstances (See **Surinder Singh Deswal v. Virender Gandhi: AIR 2019 SC 2956** ). 12. The position of law with regard to exercise of power by the appellate court under Section 148 of the Act has been further clarified by the Supreme Court in **Surinder Singh Deswal v. Virender Gandhi: AIR 2020 SC 415.** 13. As per Annexure-II order, the appellate court granted only a period of fifteen days to the petitioner to deposit 20% of the amount of compensation. An appellant, who is ordered to deposit amount under Section 148(1) of the Act, is entitled to get a period of sixty days from the date of such order, to deposit the amount. The statute specifically grants a period of sixty days to an accused/appellant to comply with an order passed under Section 148(1) of the Act. Then, any direction given by an appellate court that the amount shall be deposited by the accused/appellant within a period, which is lesser than sixty days from the date of such order, would be illegal. The appellate court has no power to reduce or curtail the period provided in the statute to comply with an order for deposit of amount. The appellate court has got no discretion in the matter. It is mandatory for **Crl.MC.No.1508 OF 2020(G)** **6** the appellate court to grant a period of sixty days to the accused/appellant to comply with an order passed under Section 148(1) of the Act. 14. Therefore, Annexure-II order passed by the appellate court, as far as it pertains to the time granted to the accused/appellant for depositing the amount, cannot be sustained in law. 15. Annexure-II order is dated 24.12.2019. Therefore, the petitioner was liable to deposit the amount only on or before the date 22.02.2020. The period provided under the statute is now over. As per Section 148(2) of the Act, the petitioner is entitled to seek a further period of thirty days for depositing the amount on showing sufficient cause. In the instant case, as per Annexure-III order, the appellate court has already exercised the power under Section 148(2) of the Act to grant extension of time for a further period of thirty days. Considering this aspect, I find that it is only proper to grant the petitioner a further period of thirty days from 22.02.2020 for complying with the direction contained in Annexure-II order for depositing the amount. There is no sufficient ground for granting a further period of three months to the petitioner for depositing the amount. **Crl.MC.No.1508 OF 2020(G)** **7** 16. Consequently, the petition is allowed in part. The petitioner is granted a period of thirty days from the date 22.02.2020 for depositing the amount in compliance with Annexure-II order. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **Crl.MC.No.1508 OF 2020(G)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-I TRUE COPY OF THE JUDGMENT IN STC NO.3225/2015 DATED 123.11.2019 PASSED BY THE JFCM THALIPARAMBA** **ANNEXURE-II TRUE COPY OF THE ORDER IN CMP NO.7737/2019 IN CRL. APPEAL NO.357/2019 DATED 24.12.2019 PASSED BY THE COURT OF SESSION, THALASSERY** **ANNEXURE-III TRUE COPY OF THE ORDER DATED 09.01.2020 IN CMP NO.133/2020 IN CMP NO.7737/2019 IN CRL. APPEAL NO.357/2019 PASSED BY THE COURT OF SESSIONS THALASSERY** **ANNEXURE-IV TRUE COPY OF THE MEDICAL CERTIFICATE DATED 08.02.2020** **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN**