Partly allowed

Vishnu S.V. v. Sathya Sreekumar

Kerala HC12 Nov 2019Crl.MC/7018/2019

Case brief

AI extract

What is this about?

This court allowed a criminal miscellaneous petition modifying an appellate order. The court held that the Sessions Court rightly invoked Section 148(1) of the NI Act to order a 20% deposit of the compensation amount. However, the one-month timeline was illegal; the deposit period was extended to sixty days as required by statute. The appellant can seek an additional thirty days if necessary.

What did the court decide?

The time granted for deposit of 20% of the compensation amount was modified to sixty days from the date of the appellate order. The petitioner is permitted to approach the appellate court for an addit

Vishnu S.V. Vs Sathya Sreekumar — Cheque Dishonour | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941

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Crl.MC.No.7018 OF 2019(F)

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CRA 186/2019 DATED 03-10-2019 OF II ADDITIONAL DISTRICT COURT,TRIVANDRUM

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PETITIONER/APPELLANT/ACCUSED:

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VISHNU S.V. AGED 24 YEARS S/O.SREEKANTAN, TC 41/1892, NARAYANA, THERAKAM JUNCTION, MANACAUD.P.O, THIRUVANANTHAPURAM PIN-695009

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BY ADVS. SRI.BIJU BALAKRISHNAN SMT.V.S.RAKHEE SMT.K.J.GISHA SMT.SAYUJYA

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RESPONDENTS/ COUNTER PETITIONERS/RESPONDENTS/DE FACTO COMPLAINANT AND STATE:

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1 SATHYA SREEKUMAR W/O.LATE SREEKUMARAN NAIR K, SREEVISHAK, LUCY GARDEN, SNRA-364, BUND ROAD, KARAMANA.P.O, THIRUVANANTHAPURAM PIN-695009

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2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031

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BY ADVS.

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R1 SRI.S.JUSTUS SRI C N PRABHAKARAN -SR PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.7018 OF 2019(F) 2

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“CR”

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O R D E R

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The petitioner is the accused in the case S.T.No.78/2014 on the file of the Court of the Judicial First Class Magistrate-X, Thiruvananthapuram.

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The aforesaid case was instituted upon the complaint filed by the first respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). After trial, the learned Magistrate found the petitioner guilty of the offence under Section 138 of the Act and convicted him thereunder and sentenced him to simple imprisonment for a period of six months and also directed him to pay an amount of Rs.25,00,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of three months.

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The petitioner filed appeal before the Court of Session, Thiruvananthapuram challenging the conviction entered against him and the sentence imposed on him by the trial court. The appeal was admitted by the Sessions Court. As per Annexure-A5 order, the appellate court suspended the sentence against the petitioner on certain conditions. One of the conditions was that he shall deposit 20% of the fine amount

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Crl.MC.No.7018 OF 2019(F) 3

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before the trial court as per Section 148(1) of the Act within a period of one month. Annexure-A5 order is challenged in this petition filed under Section 482 Cr.P.C

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Heard the learned counsel for the petitioner and the first respondent.

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The learned counsel for the petitioner raised various contentions. He has contended that the learned Sessions Judge should not have invoked the provision under Section 148(1) of the Act while suspending the sentence imposed on the petitioner. It is also contended that the Sessions Court has not granted the minimum time provided under the statute for depositing the amount in the court.

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Section 148(1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer against conviction under Section 138, 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.

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Section 148 was introduced in the Act by Amendment Act No.20/2018, with effect from 01.09.2018.

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Crl.MC.No.7018 OF 2019(F) 4

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Section 148(1) of the Act empowers the court, in which an accused has filed appeal against conviction, 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. Section 148(1) of the Act applies to cases where complaints have been filed even prior to 01.09.2018. Though the word 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 (See Surinder Singh Deswal v. Virender Gandhi : AIR 2019 SC 2956 ). Therefore, the contention of the petitioner that, while suspending the sentence against him, the appellate court had no power to direct deposit of 20% of the amount of compensation cannot be accepted.

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Learned counsel for the petitioner pointed out that the appellate court has granted him only a period of one month to deposit the amount.

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Section 148(2) of the Act states 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

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Crl.MC.No.7018 OF 2019(F) 5

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exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. An appellant, who is ordered under Section 148(1) of the Act, to deposit 20% of the amount of fine or compensation, is entitled to get a period of sixty days from the date of the order, to deposit the amount. Any direction given by the appellate court that, the amount shall be deposited 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 the period provided in the statute for deposit of the amount.

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Therefore, it is only proper to extend the time granted to the petitioner by the appellate court for depositing the amount to sixty days from the date of Annexure-A5 order.

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Learned counsel for the petitioner pointed out that, in the instant case, the amount ordered to be deposited will come Rs.5,00,000/-. Learned counsel for the petitioner would pray that a further period of thirty days, as provided in Section 148(2) of the Act, may be granted for depositing the amount. The petitioner has to approach the appellate court to grant further time for depositing the amount, if it becomes impossible for him to deposit the amount within a period of sixty days from the date of Annexure-A5 order. The appellate

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Crl.MC.No.7018 OF 2019(F) 6

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court may grant further time, not exceeding thirty days, for deposit of the amount, if it is satisfied that there is sufficient cause for not depositing the amount within the stipulated period of sixty days.

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Consequently, the petition is allowed in part. Annexure-A5 order passed by the court below is modified and the petitioner is granted a period of sixty days from the date that order for depositing 20% of the amount of compensation awarded to the complainant by the trial court. The petitioner is at liberty to move the appellate court for granting further time, not exceeding a period of thirty days, for depositing the amount. If any such application is filed by the petitioner, the appellate court shall consider such application on merits and pass appropriate orders.

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Sd/-

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R. NARAYANA PISHARADI

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JUDGE

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LEK

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Crl.MC.No.7018 OF 2019(F) 7

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE COMPLAINT DT.25.08.2012, NUMBERED AS ST.NO.78/2014 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT-X, THIRUVANANTHAPURAM

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ANNEXURE A2 TRUE COPY OF THE JUDGMENT DT.19.09.2019 IN ST NO.78/2014 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT-X, THIRUVANANTHAPURAM

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ANNEXURE A3 TRUE COPY OF THE REPORT DT.02.02.2018 WITH COVERING LETTER DT.03.02.2018 OF THE DIRECTOR OF FORENSIC SCIENCE LABORATORY, THIRUVANANTHAPURAM

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ANNEXURE A4 TRUE COPY OF THE MEMORANDUM IN CRL.APPEAL NO.186/2019 ON THE FILES OF THE SESSIONS COURT, THIRUVANANTHAPURAM

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ANNEXURE A5 COPY OF THE ORDER DT.03.10.2019 IN CRL.M.P.NO.2187/2019 IN CRL.APPEAL NO.186/2019 OF THE SESSIONS COURT, THIRUVANANTHAPURAM

Vishnu S.V. v. Sathya Sreekumar

Case brief

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Vishnu S.V. v. Sathya Sreekumar

Case brief

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