Partly allowed

Sajith Rahman.v.a v. State of Kerala

Kerala HC28 Jan 2020Crl.MC/748/2020

Case brief

AI extract

What is this about?

The High Court, in a Criminal Miscellaneous petition under Section 482 Cr.P.C., challenged an Additional Sessions Judge's order suspending a sentence in a cheque dishonour appeal. The court modified the suspension order, holding that while the appellate court can order a deposit above 20%, it lacks jurisdiction to reduce the mandatory sixty days for such deposit, directing the petitioner be grante

What did the court decide?

The petition was allowed partially; the petitioner was granted sixty days time from the date of the impugned suspension order to deposit one-quarter of the fine amount.

Sajith Rahman.v.a Vs State of Kerala — Cheque Dishonour | Kerala HC (2020)

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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 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941

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Crl.MC.No.748 OF 2020(C)

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AGAINST THE ORDER/JUDGMENT IN CRA 248/2019 OF DISTRICT & SESSIONS
COURT, ALAPPUZHA

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PETITIONER/S:

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SAJITH RAHMAN.V.A
AGED 57 YEARS
S/O ABDUL KHADER, VELIYIL HOUSE, EZHUPUNNA SOUTH
P.O.CHERTHALA.

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BY ADV. SRI.B.PRAMOD

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RESPONDENT/S:

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1STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM

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2BABY ,
MEYYANTHARA, ERAMALLOOR P.O.CHERTHALA-688 537.

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OTHER PRESENT:

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SRI AJITH MURALI-PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
28.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.748 OF 2020(C)

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O R D E R

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Dated this the 28th day of January 2020

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The petitioner is the accused in the case S.T.No.14/2016 on the file of the Court of the Judicial First Class Magistrate-IV, Cherthala.

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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 him thereunder. The trial court sentenced him to imprisonment till the rising of the court and to pay a fine of Rs.4,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months.

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The petitioner filed Crl.Appeal No.248/2019 before the Court of Session, Alappuzha, challenging the order of conviction and sentence passed against him by the trial court. The Sessions Court admitted the appeal filed by the petitioner.

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The petitioner had filed an application as

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Crl.M.P.No.7388/2019 for suspension of the sentence imposed on him by the trial court. The aforesaid application was allowed by the learned Additional Sessions Judge as per Annexure-II order which reads as follows:

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“Heard the counsel for appellant. I have perused the judgment of the court below. I am convinced of the fact that there is an arguable case for the appellant. Therefore appeal is admitted. Consequently, the sentence imposed by the court below shall

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Crl.MC.No.748 OF 2020(C)

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stand suspended and the appellant shall be released on bail by the court below on executing bond for Rs.50,000/- by himself and by two solvent sureties, and also on condition that the appellant shall deposit ¼ of the fine amount before the court below, before executing the bond. 30 days time granted for executing the bond from today.”

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Annexure-II order is challenged in this petition field under

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Section 482 Cr.P.C. on the ground that it violates the provisions contained in Section 148 of the Act.

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Heard the learned counsel for the petitioner.

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Annexure-II order is challenged by the petitioner on two

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grounds. (1) The appellate court has directed the petitioner to deposit ¼ of the fine amount and the appellate court has no authority to direct deposit of more than 20% of the amount of fine or compensation awarded by the trial court. (2) The appellate court did not grant the required time to the petitioner to deposit the amount.

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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 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 states that, the amount referred to in sub-section

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(1) shall be deposited within sixty days from the date of the order, or within

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Crl.MC.No.748 OF 2020(C)

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such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the appellant.

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There is no merit in the challenge made to Annexure-II order on

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the first ground. Deposit of 20% of the amount of fine or compensation stipulated under Section 148(1) of the Act is only the minimum. It does not mean that more than 20% of the amount cannot be ordered to be deposited by the appellate court under Section 148(1) of the Act. The requirement is only that the minimum amount of deposit shall be 20% of the fine or compensation awarded by the trial court.

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However, there is merit in the challenge made to Annexure-II order on the second ground. As per Section 148(2) of the Act, the appellate court should have granted a minimum period of sixty days to the appellant to make the deposit. The appellate court has no power or jurisdiction to reduce the period of sixty days and to direct the appellant/accused to deposit the amount within a period, which is less than sixty days.

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In the aforesaid circumstances, I find that Annexure-II order is

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to be modified by granting sixty days time for the petitioner to deposit the amount ordered by the appellate court.

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Consequently, the petition is allowed in part as follows. The petitioner is granted sixty days time from the date of Annexure-II order to deposit ¼ of the fine amount in compliance with that order. If for any

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Crl.MC.No.748 OF 2020(C)

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reason, the petitioner could not make deposit of the amount within a period of sixty days from the date of Annexure-II order, the petitioner is at liberty to approach the appellate court under Section 148(2) of the Act, to grant extension of time for a further period of thirty days and if any such application is made, the appellate court shall consider such application on merits and pass appropriate orders thereon.

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Sd/-

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R. NARAYANA PISHARADI

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JUDGE

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Dxy

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Crl.MC.No.748 OF 2020(C)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE 1TRUE COPY OF THE MEMORANDUM OF
CRL.APPAL NO 248/2019 ON THE FILE OF
THE SESSIONS COURT ALAPPUZHA.
ANNEXURE 2TRUE COPY OF THE ORDER DATED 26.12.2019
IN CRL.M.P.NO 7388/2019 IN CRL.APPEAL
NO 248/2019 ON THE FILE OF THE SESSIONS
COURT, ALAPPUZHA.

Sajith Rahman.v.a v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sajith Rahman.v.a v. State of Kerala

Case brief

What is this about?

What did the court decide?

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