Kerala High Court
Varghese vs State Of Kerala on 2 August, 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
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
CRL.MC NO. 6499 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 27.05.2024 IN CRA NO.65 OF 2024
OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM ARISING OUT OF THE
ORDER/JUDGMENT DATED 23.02.2024 IN ST NO.9857 OF 2016 OF JUDICIAL
MAGISTRATE OF FIRST CLASS ,CHANGANACHERRY
PETITIONER:
VARGHESE,
AGED 50 YEARS
S/O M.V.THOMAS,
RESIDING AT MATHUPURAM HOUSE
PUZHAVATHU KARA ,
CHANGANACHERRYSERY TALUK
CHANGANACHERRY PO,
KOTTAYAM DISTRICT,
PIN - 686101
BY ADVS.
K.N.RADHAKRISHNAN(THIRUVALLA)
AMRUTHA KALYANI P.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 BAIJU ABRAHAM
AGED 40, S/O BABYCHAN KOTTAKAL HOUSE,
THRICKODITHANAM KARA,
THRICKODITHANAM,PO,
CHANGANASSERY,
KOTTAYAM DISTRICT. PIN :,
PIN - 686105
CRL.MC NO. 6499 OF 2024
2
OTHER PRESENT:
SMT. SREEJA V (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 02.08.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
CRL.MC NO. 6499 OF 2024
3
BECHU KURIAN THOMAS, J.
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Crl.M.C.No.6499 of 2024
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Dated this the 2nd day of August, 2024
ORDER
Petitioner is the accused in S.T.No.9857 of 2016 on
the files of the Judicial First Class Magistrate's Court-I,
Changanacherry. He was convicted for the offence under
Section 138 of the Negotiable Instruments Act, 1881 (for
short, 'N.I.Act'). As per Annexure 1 judgment, he was
directed to pay a compensation of Rs.15,00,000/-. In the
appeal filed as Crl.A.No.65 of 2024, the learned Sessions
Judge had by the impugned order dated 25.03.2024
suspended the sentence and also directed 20% of the
compensation amount to be deposited under Section 148
of the N.I. Act. Petitioner is aggrieved by the direction to
deposit the aforesaid amount.
2. I have heard Adv.K.N.Radhakrishnan, appearing
for the petitioner as well as Smt.Sreeja V., the learned
Public Prosecutor.
CRL.MC NO. 6499 OF 2024
3. Considering the nature of the impugned order, I
am of the view that notice to the second respondent can
be dispensed with.
4. In the decision in Sreenivasan P. v. Babu Raj
[2024 KHC Online 270], the Division Bench of this Court
after considering the decision in Jamboo Bhandari v.
M.P.State Industrial Development Corporation Ltd.
[(2023) 10 SCC 446] held that reasons ought to be
mentioned for exercising the discretion to impose the
condition directing deposit of a percentage of the
compensation amount. In Sreenivasan's case (supra), the
Division Bench of this Court held as follows :-
(a) Under Section 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 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
CRL.MC NO. 6499 OF 2024
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. It is evident, on a reading of Annexure-2
impugned order that the condition to deposit 20% of the
compensation amount was imposed by the Sessions Court
without indicating any reason. Hence the impugned order
to that extent is liable to be set aside and a fresh
consideration be directed.
CRL.MC NO. 6499 OF 2024
6. Though in Annexure 3 order, the petitioner had
been granted time till 04-06-2024, to deposit the amount,
I am of the view that the basic order in which the direction
was issued under Section 148 of NI Act being a non-
speaking order, the same is required to be set aside and
Annexure 2 order reconsidered within four weeks.
7. Accordingly, the order dated 25.03.2024 in
Crl.M.P.No.925 of 2024 in Crl.A.No.65 of 2024 on the files
of the Sessions Court, Kottayam to the extent it directs
deposit of 20% of the compensation amount is set aside.
The learned Sessions Judge shall reconsider the matter
regarding deposit under Section 148 of the N.I. Act afresh,
within three weeks from the date of receipt of a copy of
this order, in accordance with law.
The Registry of this Court shall intimate this order to
the learned Sessions Judge for compliance.
Sd/-
BECHU KURIAN THOMAS
JUDGE
AJM
CRL.MC NO. 6499 OF 2024
PETITIONER ANNEXURES
Annexure 1 THE TRUECOPY OF THE JUDGEMENT IN
ST NO 9857 OF 2016 OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT,
CHANGANASSERY DATED 23.02.2024,
Annexure 2 THE COPY OF THE ORDER IN CRIMINAL
M.P NO 925 OF 2024 IN CRIMINAL
APPEAL 65/2024 OF THE SESSIONS
COURT KOTTAYAM
Annexure 3 THE COPY OF THE ORDER CRIMINAL M.P
1602 OF 2024 IN CRIMINAL M.P 925
OF 2024 IN CRIMINAL APPEAL 65 OF
2024 OF THE SESSIONS COURT
KOTTAYAM DATED 27.05.2024
Annexure 4 THE COPY OF JUDGEMENT IN OS 109 OF
2016 OF THE SUB COURT KOTTAYAM
DATED 12.10.2018
