Tabin J Cyril v. C.P. Mathukutty and State of Kerala (OP(CRL). Nos. 322, 323 & 327 of 2024)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ## **`FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946`** ## **`OP(CRL.) NO. 322 OF 2024`** ## **`AGAINST THE ORDER/JUDGMENT DATED 23.01.2024 IN CRA NO.20 OF 2024`** ## **`OF DISTRICT & SESSIONS COURT, ALAPPUZHA.`** ## **`PETITIONER:`** ``` TABIN.J. CYRIL AGED 47 YEARS S/O K.J. LEONS, SENIOR CIVIL OFFICER (SCPO 6417), AR CAMP, ALAPPUZHA,, PIN - 688012 ``` ``` BY ADVS. K.G.CLEETUS N.V.PAUL ``` ## **`RESPONDENTS:`** - **`1 C.P. MATHUKUTTY AGED 67 YEARS CHINGACHAN PARAMBIL, THATHAMPALLY.P.O., THATHAMPALLY, ALAPPUZHA, PIN - 688013`** - **`2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** ## **`SRI.G.SUDHEER.P.P`** ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(CRL.) NOS. 322,323 AND 327 OF 2024 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 OP(CRL.) NO. 323 OF 2024 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 23.01.2024 IN CRA NO.21 OF ``` ``` 2024 OF DISTRICT & SESSIONS COURT, ALAPPUZHA ``` ## **`PETITIONER:`** ``` TABIN.J. CYRIL AGED 47 YEARS ``` ``` S/O K.J. LEONS, SENIOR CIVIL OFFICER (SCPO 6417), AR CAMP, ALAPPUZHA, PIN - 688012 ``` ``` BY ADVS. K.G.CLEETUS N.V.PAUL ``` ## **`RESPONDENTS:`** - **`1 C.P. MATHUKUTTY AGED 67 YEARS CHINGACHAN PARAMBIL, THATHAMPALLY.P.O., THATHAMPALLY, ALAPPUZHA, PIN - 688013`** - **`2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** ## **`SRI.G.SUDHEER.P.P`** ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(CRL.) NOS. 322,323 AND 327 OF 2024 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 ``` ``` OP(CRL.) NO. 327 OF 2024 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 23.01.2024 IN CRA NO.22 OF 2024 OF DISTRICT & SESSIONS COURT, ALAPPUZHA PETITIONER: ``` ``` TABIN.J. CYRIL AGED 47 YEARS S/O K.J. LEONS, SENIOR CIVIL OFFICER (SCPO 6417), AR CAMP, ALAPPUZHA,, PIN - 688012 ``` ``` BY ADVS. K.G.CLEETUS N.V.PAUL ``` ## **`RESPONDENTS:`** - **`1 C.P. MATHUKUTTY AGED 67 YEARS CHINGACHAN PARAMBIL, THATHAMPALLY.P.O., THATHAMPALLY, ALAPPUZHA,, PIN - 688013`** - **`2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** ## **`SRI.G.SUDHEER.P.P`** ## **`THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` OP(CRL.) NOS. 322,323 AND 327 OF 2024 ``` ``` 4 ``` ## **K.BABU, J** . -------------------------------------- OP(CRL.) NOS. 322,323 & 327 OF 2024 --------------------------------------Dated this the 12[th] day of April, 2024 ## **JUDGMENT** The petitioner is the accused in S.T.Nos. 119/2016, 120/2016 and 121 /2016. The petitioner has been convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment till rising of the Court and also to pay a fine of Rs.5,00,000/- (Rupees Five lakhs Only) in each case. 2. The petitioner challenged the judgments of conviction and sentence before the District and Sessions Court, Alappuzha in Crl.A. Nos.20/2024, 21/2024 and 22/2024. Along with the appeal, the petitioner filed applications under Section 389 Cr.P.C seeking suspension of sentence. The Sessions Court, in the applications under Section 389 Cr.P.C. suspended the sentence passed by the learned Magistrate on condition that the petitioner shall execute a bond for Rs.50,000/-(rupees Fifty Thousand Only) with two solvent sureties each for the like sum to the satisfaction of the trial court and to deposit an amount not ``` OP(CRL.) NOS. 322,323 AND 327 OF 2024 ``` ``` 5 ``` less than 20% of the fine amount. 3. The learned counsel for the petitioner contented that the Sessions Court has not assigned any reason for directing the petitioner to deposit 20% of the amount of fine imposed by the trial court. The learned counsel further submitted that the Sessions Court has passed a blanket order without considering whether the case falls in the exception or not. 4. The learned counsel relied on **Jamboo Bhandari v.M.P.State Industrial Development Corporation Ltd. [2023 (6) KHC 80 (SC)]** and **Sreenivasan P.v Babu Raj [2024 (2) KHC 621 (DB)]** to substantiate his contentions. In **Jamboo Bhandari,** while considering the scope of Section 148 of the Negotiable Instruments Act, the Apex Court observed thus:- “6. What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded. 7. Therefore, when Appellate Court considers the prayer under Section 389 of the Cr.P.C. of an accused who has been convicted for offence under Section 138 of the N.I Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing ``` OP(CRL.) NOS. 322,323 AND 327 OF 2024 ``` ``` 6 ``` the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded. 8. The submission of the learned counsel appearing for the original complainant is that neither before the Sessions Court nor before the High Court, there was a plea made by the appellants that an exception may be made in these cases and the requirement of deposit or minimum 20% of the amount be dispensed with. He submits that if such a prayer was not made by the appellants, there were no reasons for the Courts to consider the said plea. 9. We disagree with the above submission. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not.” ## 5. A Division Bench of this Court in **Sreenivasan v.** ## **Babu Raj** held thus:- “8. In our view, a reading of Section 148 of the N.I.Act as an exception to the general principles of suspension of sentence by an Appellate Court as contained in Section 389 of the Cr.P.C., and in the backdrop of the decisions of the Supreme Court in **Surinder Singh Deswal and Jamboo Bhandari** (Supra) would result in the following interpretation as regards the nature and manner of exercise of discretion by the Appellate Court under Section 148 of the N.I. Act: (a) Under Section 148 of the N.I Act, the Appellate Court has a discretion to either order the appellant to deposit a portion of the fine or compensation awarded by the Trial Court or to waive such deposit. In either event, since it would be exercising a statutory discretion, the Appellate Court would be legally obliged to furnish reasons for its decision so as to unambiguously indicate that its discretion was exercised keeping in mind the object of the statutory provision. (b) If the Appellate Court, pursuant to the exercise of its ``` OP(CRL.) NOS. 322,323 AND 327 OF 2024 ``` ``` 7 ``` discretion, finds that the appellant is required to deposit a portion of the fine or compensation awarded by the Trial Court pending disposal of the appeal, then the amount directed to be deposited cannot be less than an amount equivalent to 20% of the fine or compensation awarded by the Trial Court. (c) If the Appellate Court chooses to direct the appellant to deposit any sum which is more than 20% of the fine or compensation awarded by the Trial Court, then it would be obliged to give further reasons for directing the deposit of such amounts as are in excess of the minimum of 20% of the fine or compensation awarded by the Trial Court.” 6. In the impugned order, the Sessions Judge did not assign sufficient reason while ordering a deposit of 20% of the amount of compensation imposed by the Trial Court. The Sessions Court has also not considered whether the case of the petitioner fell in the exception or not. Therefore, the orders impugned to the extent it directed the petitioner to deposit 20% of the amount of compensation imposed by the trial court stand set aside. The Sessions Court is directed to reconsider the applications afresh after affording opportunity of hearing to both sides within a period of one month from the date of receipt of a copy of this judgment. Sd/- **K.BABU, JUDGE** **saap** ``` OP(CRL.) NOS. 322,323 AND 327 OF 2024 ``` ``` 8 ``` ## **`APPENDIX OF OP(CRL.) 322/2024`** ``` PETITIONER EXHIBITS EXHIBIT P1 ``` ``` TRUE COPY OF THE JUDGMENT DATED 21.12.2023 IN S.T. NO.119/2016 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, ALAPPUZHA ``` ``` EXHIBIT P2TRUE COPY OF CRL.M.P. NO.302/2024 IN CRL.APPEAL NO.20/2024 ON THE FILE OF HON'BLE SESSIONS COURT, ALAPPUZHA DATED NIL ``` ``` EXHIBIT P3TRUE COPY OF THE ORDER DATED 23.1.2024 IN CRL.M.P.NO.302/2024INCRL.APPEAL NO.20/2024 OF THE HON'BLE SESSIONS COURT, ALAPPUZHA EXHIBIT P4TRUE COPY OF THE ORDER DATED 25.3.2024 IN CRL.M.P. NO.1243/2024 OF THE HON'BLE ADDL. DISTRICT & SESSIONS COURT-III, ALAPPUZHA ``` ``` OP(CRL.) NOS. 322,323 AND 327 OF 2024 ``` ``` 9 ``` ## **`APPENDIX OF OP(CRL.) 323/2024`** ``` PETITIONER EXHIBITS EXHIBIT P1 ``` ``` TRUE COPY OF THE JUDGMENT DATED 21.12.2023 IN S.T. NO.120/2016 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, ALAPPUZHA ``` ``` EXHIBIT P2TRUE COPY OF CRL.M.P. NO.313/2024 IN CRL.APPEAL NO.21/2024 ON THE FILE OF HON'BLE SESSIONS COURT, ALAPPUZHA DATED NIL ``` ``` EXHIBIT P3TRUE COPY OF THE ORDER DATED 23.1.2024 IN CRL.M.P.NO.313/2024INCRL.APPEAL NO.21/2024 OF THE HON'BLE SESSIONS COURT, ALAPPUZHA EXHIBIT P4TRUE COPY OF THE ORDER DATED 25.3.2024 IN CRL.M.P. NO.1244/2024 OF THE HON'BLE ADDL. DISTRICT & SESSIONS COURT-III, ALAPPUZHA ``` ``` OP(CRL.) NOS. 322,323 AND 327 OF 2024 ``` ``` 10 ``` ## **`APPENDIX OF OP(CRL.) 327/2024`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE JUDGMENT DATED 21.12.2023 IN S.T. NO.121/2016 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, ALAPPUZHA EXHIBIT P2TRUE COPY OF CRL.M.P. NO.312/2024 IN CRL.APPEAL NO.22/2024 ON THE FILE OF HON'BLE SESSIONS COURT, ALAPPUZHA DATED NIL EXHIBIT P3TRUE COPY OF THE ORDER DATED 23.1.2024 IN CRL.M.P.NO.312/2024INCRL.APPEAL NO.22/2024 OF THE HON'BLE SESSIONS COURT, ALAPPUZHA EXHIBIT P4TRUE COPY OF THE ORDER DATED 25.3.2024 IN CRL.M.P. NO.1245/2024 OF THE HON'BLE ADDL. DISTRICT & SESSIONS COURT-III, ALAPPUZHA ```