Thomas Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** ## **WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941** ## **Crl.MC.No.1117 OF 2020(H)** **TO QUASH THE CONDITION IMPOSED IN ANNEXURE-C INTERIM ORDER DATED 26.11.2019 IN CRL.M.P.NO.4204 OF 2019 IN CRL.APPL.NO.290/2019 ON THE FILES OF THE SESSIONS JUDGE, THRISSUR** ## **PETITIONER/APPELLANT/ACCUSED:** **THOMAS AGED 45 YEARS S/O. THOMAS, NAGINI HOUSE, NEAR CHALAKUDY POLICE STATION EAST CHALAKUDY , THRISSUR** **BY ADV. SMT.M.R.JAYALATHA** ## **RESPONDENTS/COMPLAINANT/STATE:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM** - **2 RANI JOY, AGED 52 YEARS** **W/O.JOY, AMBATT HOUSE, KORATTY SOUTH, ANGADY DESOM, THEKKUMURI VILLAGE, KORATTY P.O., THRISSUR** ## **SRI C K PRASAD-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.02.2020, THE COURT ON 12.02.2020 PASSED THE FOLLOWING:** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.1117 of 2020 ---------------------------------------------Dated this the 12[th] day of February, 2020 ## **O R D E R** The petitioner is the accused in the case S.T.No.6572/2014 on the file of the Court of the Judicial First Class Magistrate, Chalakudy. 2. The trial court convicted the petitioner for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and sentenced him to pay a fine of Rs.22,50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months and also directed that, if the fine amount was realised, it shall be paid as compensation to the complainant. 3. The petitioner filed Crl.A.No.290/2019 before the Court of Session, Thrissur challenging the order of conviction and sentence passed against him by the trial court. The Sessions Court admitted the appeal. Crl.M.C.No.1117/2020 3 4. The petitioner had filed application for suspension of sentence imposed on him by the trial court. Learned Sessions Judge allowed the aforesaid application on 26.11.2019 as per Annexure-C order, which reads as follows: _“Heard. Perused Lower Court Judgment. An arguable case made out. Sentence suspended and accused bailed out on depositing 1/5[th] of cheque amount, and on executing bond for Rs.1,00,000/(Rupees One lakh) with two solvent sureties each for the like sum to the satisfaction of the Lower Court. Issue notice. Return of notice – 20/02/2020.”_ 5. This petition is filed under Section 482 Cr.P.C for setting aside the direction made in Annexure-C order for deposit of amount. 6. Heard the learned counsel for the petitioner. 7. Learned counsel for the petitioner submitted that the petitioner is a cancer patient and huge amount is being spent for his treatment and that he is not in a position to deposit the amount as ordered by the appellate court. 8. Annexure-C order passed by the learned Sessions Judge directing the petitioner to deposit one-fifth of Crl.M.C.No.1117/2020 4 the cheque amount is, presumably, an order passed under Section 148(1) of the Act. 9. Section 148(1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, in an appeal 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 twenty percent of the fine or compensation awarded by the trial court. As per Section 148(2) of the Act, the amount has to be deposited by the appellant/accused within a period of 60 days from the date of the order passed under Section 148(1) or within such further period, not exceeding 30 days, as may be directed by the appellate court, on sufficient cause being shown by the appellant. 10. The direction made in Annexure-C 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 cheque amount and the fine amount being the same, the direction is not illegal on that ground. Crl.M.C.No.1117/2020 5 11. Annexure-C order does not specify the date or the period within which the amount has to be deposited by the appellant. Though the period is specified in the statute, it is always desirable that the appellate courts shall specify the date or the period within which the amount shall be deposited by the appellant. 12. 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 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 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 Crl.M.C.No.1117/2020 6 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. It means that the appellate court is not obliged to record any special reasons for issuing a direction under Section 148 of the Act to the appellant to deposit 20% of the amount of compensation awarded by the trial court. 13. 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 rule and non-exercise of such power is the exception. 14. In the instant case, the petitioner was admitted in the hospital on 24.09.2019 and he was discharged on 07.10.2019. Crl.M.C.No.1117/2020 7 He had undergone surgery for removal of right kidney. In Annexure-D medical certificate it is stated as follows: _“Mr.Thomas Thomas, is a diagnosed to have Right Renal cell carcinoma (cancer of right kidney) with IVC thrombus. He underwent Right open radical nephrectomy (removal of right kidney) + IVC thrombectomy + cholecystectomy + appendicectomy + left inguinal hernioplasty + para aortic lymphadenopathy on 26/09/19 for the same which was an expensive. He is now undergoing Chemotherapy. He is advised rest for a period of six months.”_ 15. In _**Surinder Singh Deswal**_ (supra) itself, the Apex Court has indicated that a direction to deposit 20% of the amount of compensation can be dispensed with by the appellate court under exceptional circumstances on assigning special reasons. 16. In _**Ambili**_ (supra), this Court has held that it is not necessary for the appellate court to _suo motu_ find out special reasons for not making a direction under Section 148(1) of the Act. It is for the appellant/accused to point out to the appellate court the special circumstances, if any existing, for not making a Crl.M.C.No.1117/2020 8 direction under Section 148(1) of the Act. The appellant/accused can mention such special reasons or circumstances, if any, in the application filed by him for suspension of sentence. Then, the appellate court would be able to consider whether such reasons or circumstances pointed out by the appellant constitute special reasons or special circumstances sufficient for not making any direction. 17. In the instant case, the petitioner has no case that he had brought to the notice of the appellate court special reasons for not making a direction under Section 148(1) of the Act. Considering the fact that he has recently undergone surgery for removal of right kidney, I find that an opportunity can be granted to him to approach the appellate court for pointing out special reasons for not making a direction under Section 148(1) of the Act. 18. Consequently, the petition is disposed of as follows: Annexure-C order passed by the learned Sessions Judge, as far as it pertains to the direction given to the petitioner to deposit one-fifth of the cheque amount, is set aside for the purpose of granting an opportunity to the petitioner to show special or Crl.M.C.No.1117/2020 9 exceptional reasons for not making such a direction. The petitioner shall file an application in that regard in the Court of Session, which shall be supported by an affidavit sworn to by him and also documents relating to his treatment. Such application shall be filed by him on or before the date 20.02.2020. The application, if any, filed by the petitioner shall be disposed of by the learned Sessions Judge within a period of seven days from the date of filing it, after hearing the complainant also, if he has appeared in the appeal. If no application, as directed above, is filed by the petitioner within the date mentioned above, the direction contained in Annexure-C order for deposit of one-fifth of the fine amount, shall get revived and come into force. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S **|**EXHIBITS:**| |**ANNEXURE-A**|**A TRUE COPY OF THE JUDGMENT S.T**| ||**NO.6572/2014 ON THE FILES OF THE JUDICIAL**| ||**FIRST CLASS MAGISTRATE COURT-CHALAKUDY**| |**ANNEXURE-B**|**A TRUE COPY OF THE RELEVANT PAGES OF THE**| ||**APPEAL MEMORANDUM DATED 21.11.2019 IN**| ||**CRL.APPEAL NO.290/2019 ON THE FILES OF**| ||**SESSIONS COURT, THRISSUR**| |**ANNEXURE-C**|**A TUE COPY OF THE ORDER DATED 26.11.2019**| ||**PASSED BY THE SESSIONS COURT THRISSUR IN**| ||**CRL.M.P.NO.4204/2019**| |**ANNEXURE-D**|**A TRUE COPY OF THE CERTIFICATE ISSUED BY**| ||**THE AMRITA INSTITUTE OF MEDICAL SCIENCE**| ||**DATED 21.11.2019**| |**ANNEXURE-E**|**A TRUE COPY OF THE RELEVANT PAGES OF THE**| ||**DISCHARGE SUMMARY ISSUED FROM AMRITA**| ||**INSTITUTE OF MEDICAL SCIENCE**| |**ANNEXURE-F**|**A TRUE COPY OF BILLS ISSUED FROM AMRITA**| ||**INSTITUTE OF MEDICAL SCIENCE**| RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE