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Shail Jiju v/s Biju Joseph & Another


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    Crl.MC. No. 1975 of 2020 (F)

    Decided On, 10 March 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

    For the Petitioner: Bimala Baby, Advocate. For the Respondents: -----



Judgment Text


1. The petitioner is the accused in the case C.C.No.1129/2015 on the file of the Court of the Judicial First Class Magistrate, Angamaly.

2. 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 her thereunder. The trial court sentenced her to undergo simple imprisonment for a period of six months and to pay a fine of Rs.45,02,000/- 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, Rs.45,00,000/- shall be paid as compensation to the complainant.

3. The petitioner filed Crl.A.No.14/2020 before the Court of Session, Ernakulam challenging the order of conviction and sentence passed against her by the trial court. The Sessions Court admitted the appeal.

4. The petitioner had filed Crl.M.P.No.64/2020 in the appellate court for suspension of the sentence imposed on her by the trial court. As per Annexure-A2 order dated 08.01.2020, the learned Sessions Judge ordered that the sentence imposed on the petitioner by the trial court shall be suspended on the condition that she will execute a bond for Rs.2,00,000/- with two solvent sureties for the like amount to the satisfaction of the trial court and also that she will deposit Rs.9,01,000/- in the trial court within a period of two months.

5. This petition under Section 482 Cr.P.C is filed by the accused challenging the direction made by the appellate court to deposit Rs.9,01,000/- in the trial court as a condition for suspension of the sentence imposed on her.

6. Heard learned counsel for the petitioner.

7. Section 148(1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, in an appeal filed 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 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.

8. 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(1) 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 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 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.

9. Very recently, in Surinder Singh Deswal v. Virender Gandhi : AIR 2020 SC 415, the Supreme Court has reiterated the position of law and also held that, when suspension of sentence is ordered by the appellate court on the condition that deposit under Section 148 shall be made by the appellant and when the direction in that regard is not complied with by the appellant, the appellate court can hold that suspension of sentence stands vacated.

10. In Ambili v. Sree Gokulam Chit and Finance Company (P) Limited (2020 (1) KLT 275), this Court has followed the aforesaid decisions of the Supreme Court and held that exercise of the power under Section 148(1) of the Act is the rule and non-exercise of such power is the exception.

11. In the instant case, the direction given by the appellate court in Annexure-A2 order is to deposit Rs.9,01,000/-. The amount of fine imposed on the petitioner by the trial court is Rs.45,02,000/-. The amount of 20% of it would come to Rs. 9,00,400/-. The amount ordered to be deposited is only Rs.600/- higher than the minimum of 20%. In the light of the two decisions of the Supreme Court in Surinder Singh Deswal referred to above, the direction given by the appellate court to the petitioner to deposit Rs.9,01,000/- cannot be found to be illegal or improper.

12. The merits of the appeal filed by the petit

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ioner and the contentions raised by the petitioner in the appeal cannot be considered while exercising the power under Section 148(1) of the Act. 13. If the petitioner could not deposit the amount within the period of 60 days from the date of order of the appellate court, she is at liberty to approach the appellate court itself under Section 148(2) of the Act to grant extension of time for a further period of thirty days for depositing the amount, on sufficient cause being shown by her. Consequently, the petition is dismissed.
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