Joseph Cheriyan @ Sabu vs State Of Kerala

Kerala High Court

Joseph Cheriyan @ Sabu vs State Of Kerala 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. 9847 OF 2023
 CRA NO.120 OF 2023 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD
PETITIONER/ APPELLANT :

            JOSEPH CHERIYAN @ SABU
            AGED 50 YEARS,
            PARAKKATTIL HOUSE, HOUSE NO 204/7,
            MERILAND, KOTTAYAM. NOW RESIDING AT
            PARAKKATTIL HOUSE, AMMINIKKAD HOUSE,
            PERINTHALMANNA, MALAPPURAM DISTRICT,
            PIN - 679 321.

            BY ADVS.
            T.K.SANDEEP
            SWETHA R.



RESPONDENT/ COMPLAINANT & STATE :

    1       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM,
            PIN - 682 031.

    2       THAJUDHEEN
            AGED 45 YEARS, S/O PAIKKADAN MUHAMMED,
            KODAKKAD AMSOM, VATTAMANNAPURAM,
            MANNARKKAD, PALAKKAD, PIN - 678 582.



            BY SRI.NOUSHAD K.A., PUBLIC PROSECUTOR




     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 9847 OF 2023
                                     2




                 BECHU KURIAN THOMAS, J.
                 =-=-=-=-=-=-=-=-=-=-=-=-=-=
                   Crl.M.C.No.9847 of 2023
                 =-=-=-=-=-=-=-=-=-=-=-=-=-=
               Dated this the 21st day of May, 2024

                                 ORDER

Petitioner was the accused in S.T.No.545 of 2016 on the files of the Judicial First Class Magistrate's Court, Mannarkkad which was a complaint filed by the 2nd respondent under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'NI Act'). By judgment dated 03.08.2023, the learned Magistrate found the accused guilty and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.17,00,000/-. In the appeal filed as Crl.A.No.120 of 2023 before the Sessions Court, Palakkad, the sentence was suspended by the impugned order dated 19.08.2023 and directed the petitioner to deposit 20% of the fine amount within two months as per Section 148 of the N.I Act.

2. When this petition came up for consideration, this Court admitted the matter and directed the petitioner to serve notice on the 2 nd respondent by speed post as well as by service of notice to the lawyer appearing for the 2nd respondent before the lower court and file a memo within ten days. This Court also granted an interim stay of the order CRL.MC NO. 9847 OF 2023 3 impugned for three months which was revived and extended by this Court till today. The memo of service of notice on the counsel appearing for the 2nd respondent is produced. However, there is no appearance. Notwithstanding the above, I deem it appropriate to take up the matter for consideration on merits taking note of the nature of the impugned order.

3. A perusal of the impugned order dated 19.08.2023 reveals that the learned Sessions Judge has directed deposit of 20% of the fine amount within two months.

4. In the decision in Sreenivasan P. v. Babu Raj [2024 KHC Online 270] it has been observed that the discretion to direct deposit of 20% under Section 148 of N.I Act must be exercised for appropriate reasons to be given by the Sessions Judge.

5. The impugned order does not reflect any such reason having been stated by the court for directing deposit of 20% of the fine amount. Therefore, I am of the view that the impugned order to the extent it directs 20% of the fine amount to be deposited is liable to be set aside and the matter be reconsidered afresh.

6. Accordingly I allow this Crl.M.C. to the extent the impugned order directs deposit of 20% of the fine amount within two months. The learned Sessions Judge shall reconsider the question of deposit under Section 148 of the N.I. Act within three weeks from the date of receipt of a copy of this order. Since the delay in passing the orders will enure to CRL.MC NO. 9847 OF 2023 4 the benefit of the petitioner, the Registry of this Court is directed to communicate this order to the learned Sessions Judge immediately.

The Crl.M.C. is allowed as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE RKM CRL.MC NO. 9847 OF 2023 5 APPENDIX OF CRL.MC 9847/2023 PETITIONER'S ANNEXURES :

Annexure I A TRUE COPY OF THE ORDER IN CRL.M.P 3653/2023 IN CRL.APL 120/2023 ON SESSIONS COURT PALAKKAD, DATED 19.08.2023 Annexure II A TRUE COPY OF THE INCOME CERTIFICATE ISSUED BY VILLAGE OFFICER TAZHEKKOD DATED 03.07.2022