Shyju Thomas vs Sree Gokulam Chits & Finance Company (P) ...

Kerala High Court

Shyju Thomas vs Sree Gokulam Chits & Finance Company (P) ... on 21 May, 2024

Author: Bechu Kurian Thomas

Bench: Bechu Kurian Thomas

       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
    THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                CRL.MC NO. 4279 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN CRA NO.126 OF 2023
  OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I,
                          KALPETTA
PETITIONER/PETITIONER :

         SHYJU THOMAS
         AGED 45 YEARS
         S/O THOMAS, NACHERY HOUSE,
         AMBALAVAYAL.P.O.,
         SULTHAN BATHERY TALUK,
         WAYANAD DISTRICT, PIN - 673 593.
         BY ADVS.
         FERHA AZEEZ
         SAFA NAVAS


RESPONDENT/RESPONDENT :

   1     SREE GOKULAM CHITS & FINANCE COMPANY (P) LTD.
         NO 66 ARCOT ROAD CHENNAI-24
         REP BY AUTHORIZED REPRESENTATIVE ASST.
         MANAGER K N SUNIL, S/O NARAYANAN K A, AGED 48
         YEARS,
         KANDANCHIRAYIL HOUSE, MYLAMBADY.P.O.
         PURAKKADI, AMSOM SULTHAN BATHERY TALUK,
         WAYANAD DISTRICT, PIN - 673 591.
   2     STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, PIN - 682 031.
         SMT.SREEJA V., PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 21.05.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
 CRL.MC 4279/2024

                                                  2


                               BECHU KURIAN THOMAS, J
                       ......................................................
                                  Crl.M.C. No.4279 of 2024
                           ...................................................
                       Dated this the 21st day of May, 2024


                                              ORDER

Petitioner was the accused in S.T.No.1014/2020 on the files of the Judicial First Class Magistrate Court-I, Sulthan Bathery. By judgment dated 29.11.2023, petitioner was found guilty and was sentenced to undergo simple imprisonment till rising of court and to pay a compensation of Rs.24,90,000/-. On appeal before the Sessions Court, Wayanad, the sentence of imprisonment was suspended initially by order dated 28.12.2023 along with a direction to deposit 20% of the cheque amount. However, by order dated 26.02.2024, this Court set aside the direction to deposit 20% in Crl.M.C.No.1886/2024 and directed reconsideration of the matter. Subsequently, by Annexure-VI order, the learned Sessions Judge directed deposit of 20% of the compensation amount within 60 days from 16.03.2024. Petitioner challenges the aforesaid order.

2. Smt.Ferha Azeez, the learned counsel for the petitioner, vehemently contended that as per the decision in Sreenivasan P. v. Babu Raj CRL.MC 4279/2024 3 2024 (2) KHC 621, this Court had observed that while considering Section 148 of the Negotiable Instruments Act, 1881, the Court is 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 provisions. According to the learned Counsel, the said aspect was not considered by the appellate court while directing deposit of 20%. It was further submitted that, despite various aspects pointed out to enable the court to lean in favour of avoiding the direction to deposit 20%, none of them were considered.

3. Smt.Sreeja V., the learned Public Prosecutor, submitted that sufficient reasons have been provided for imposing the condition of deposit of 20% and that there is no reason to interfere with the impugned order.

4. In the judgment in Sreenivasan's case (supra), a Division Bench of this Court had observed the nature and manner of exercise of discretion of the appellate court under Section 148 of the NI Act, which reads thus :

(a) Under S.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 CRL.MC 4279/2024 4 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 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.

5. The discretion to direct deposit of 20% is provided as per Section 148 of NI Act. In Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd., 2023 (10) SCC 446 and Surinder Singh Deswal @ Col.S.S.Deswal and Others v. Virender Gandhi 2019 (11) SCC 341, it has been observed that reasons must be CRL.MC 4279/2024 5 provided while imposing condition provided by the Statute. Obviously the reasons cannot be on the basis of the merits of the case in appeal, and the discretion to direct deposit must be with reference to the object of the statutory provision and also the circumstances pointed by the appellant to waive the deposit.

6. A perusal of the impugned order reveals that the learned Sessions Judge had considered specific circumstances pointed out by the petitioner to waive the deposit, and since none of them lean in favour of the petitioner, the discretion to direct the deposit of 20% was exercised in accordance with law. The circumstances pointed out by the petitioner were not convincing enough to enable the court to exclude the deposit.

7. In such circumstances, I find no reason to interfere with the impugned order. However, considering the entirety of the issue, the time to deposit 20%, as directed by the appellate court, shall stand extended till 15.06.2024.

With the above observations, this Crl.M.c.is dismissed.

sd/-

BECHU KURIAN THOMAS JUDGE AMV/24/05/2024 CRL.MC 4279/2024 6 APPENDIX OF CRL.MC 4279/2024 PETITIONER ANNEXURES ANNEXURE I TRUE COPY OF THE JUDGMENT DATED 29-11-2023 IN S.T. NO. 1014 OF 2020 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, SULTHAN BATHERY.

ANNEXURE II TRUE COPY OF THE APPEAL MEMORANDUM IN CRL.

APPEAL NO. 126 OF 2023 BEFORE THE SESSIONS COURT, KALPETTA, WAYANAD.

ANNEXURE III TRUE COPY OF THE PETITION DATED 21.12.2023 IN CRIMINAL MP NO. 3753 OF 2023 IN CRL.

APPEAL NO. 126 OF 2023 SESSIONS COURT, KALPETTA, WAYANAD.

ANNEXURE IV TRUE COPY OF THE ORDER DATED 28-12-2023 IN CRIMINAL MP NO. 3753 OF 2023 IN CRL.

APPEAL NO. 126 OF 2023 SESSIONS COURT, KALPETTA, WAYANAD.

ANNEXURE V TRUE COPY OF THE JUDGEMENT DATED 26.02.2024 IN CRL. M.C 1886 OF 2024.

ANNEXURE VI CERTIFIED COPY OF THE ORDER DATED 16.03.2024 IN CRIMINAL MP NO. 3753 OF 2023 IN CRL. APPEAL NO. 126 OF 2023 BEFORE THE SESSIONS COURT, KALPETTA, WAYANAD.

TRUECOPY