Kerala High Court
P. Sreenivasan vs Babu Raj on 20 February, 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 20th day of February 2024 / 1st Phalguna, 1945
CRL.MC NO. 1077 OF 2024
CRA 149/2023 OF DISTRICT COURT& SESSIONS COURT, MANJERI, MALAPPURAM
PETITIONER(S)/PETITIONER/APPELLANT/ACCUSED:
P. SREENIVASAN, AGED 48 YEARS, S/O NARAYANAN EZHUTHASSAN,
PARAYANCHOLA HOUSE, VALAMKULAM POST, ANAMANGAD VILLAGE,
PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN-679357
RESPONDENT(S)/RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:
1. BABU RAJ, S/O CHAMIKKUTTY, IMBRAN PARAMBIL HOUSE, ANAMANGAD,
PERINTHALMANNA, MALAPPURAM DISTRICT, PIN - 679357
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, PIN - 682031
This Criminal Misc. case again coming on for orders, upon persuing
the petition and this Court's order dated 05.02.2024, upon hearing the
arguments of M/S. P.SAMSUDIN, MILAN RACHEL MATHEW, LIRA A.B. & NASRIN
WAHAB, Advocates for the petitioner and of PUBLIC PROSECUTOR for R2, the
court passed the following:
BECHU KURIAN THOMAS, J.
--------------------------------
&
---------------------------------
Dated this the 20th day of February, 2024
REFERENCE ORDER
These two cases challenge the orders of Sessions Court directing
deposit of a percentage of the compensation amount ordered by the trial
court under section 148 of the Negotiable Instruments Act, 1881 (for short
'the Act'). The deposits were directed in appeals preferred against
conviction and sentence imposed in prosecutions under section 138 of the
Act. In Crl.M.C. No.1077 of 2024, the Sessions Court, Manjeri directed a
deposit of 20% of the compensation amount, while in Crl.M.C. No.558 of
2024, the Sessions Court directed a deposit of Rs.1,50,000/- while
suspending the sentence and imprisonment. In both cases, the deposit
was directed as a condition for suspension of sentence.
2. Learned Counsel for the petitioners contended that both the
orders directing deposit under section 148 of the Act are not speaking
orders and in the absence of reasons, the impugned orders are to be set
aside. Reliance is placed on the decision of a learned single Judge of this
Court in Baiju v. State of Kerala (2023 (7) KHC 669).
3. According to Sri.M.Shaju Purushothaman and Sri.Samsudin
Panolan, the respective learned counsel for the petitioners, the
requirement of giving reasons for imposing conditions has been detailed in
the judgment of the Supreme Court in Jamboo Bhandari v. M.P.State
Industrial Development Corporation Ltd. [(2023) 10 SCC 446] which
was followed by this Court in Baiju v. State of Kerala (supra). It was also
pointed out that a subsequent decision of the Supreme Court is binding on
the High Courts and hence Jamboo Bhandari (supra) is liable to be
followed.
4. Smt.Sreeja V., learned Public Prosecutor, on the other hand,
contended that when the statute imposes a condition of deposit with a
minimum of 20%, no reasons are required to be stated, and anything more
or less than the statutorily fixed minimum alone will require a reason.
5. Sri.K.A.Noushad, learned Public Prosecutor, contended that the
language of sections 148 and 143A of the Act indicates two different
modes in which deposits can be directed to be paid. When section 143A of
the Act states that payment under the said provision shall not exceed 20%,
section 148 of the Act states that a minimum of 20% is to be paid.
Considering the terminology used, no reasons are required to be stated
while imposing the minimum of 20%, contended the learned prosecutor.
The learned Public Prosecutor also submitted that the decision in Baiju v.
State of Kerala (supra) requires to be reconsidered.
6. While appreciating the contentions raised, it is apposite to extract
section 148 of the Act, which reads as follows:
"148. Power of Appellate Court to order payment pending appeal
against conviction.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), in an appeal by the drawer against conviction under
section 138, the Appellate Court may order the appellant to deposit such
sum which shall be a minimum of twenty per cent of the fine or
compensation awarded by the trial Court:
PROVIDED that the amount payable under this sub-section shall be
in addition to any interim compensation paid by the appellant under
section 143A.
(2) 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.
(3) The Appellate Court may direct the release of the amount deposited by
the appellant to the complainant at any time during the pendency of the
appeal:
PROVIDED that if the appellant is acquitted, the Court shall direct the
complainant to repay to the appellant the amount so released, with
interest at the bank rate as published by the Reserve Bank of India,
prevalent at the beginning of the relevant financial year, 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 complainant."
7. In Surinder Singh Deswal @ Col. S.S.Deswal and Others v.
Virender Gandhi [(2019) 11 SCC 341], it was held that the word 'may' in
section 148 of the Act has to be read as 'shall' and hence the requirement
of deposit ought to be treated as a rule. It was also observed that not
directing the deposit under section 148 of the Act is an exception, for
which special reasons are to be assigned. The above conclusion was
arrived at after holding that a purposeful interpretation of the amended
provisions was required to be adopted, keeping in mind the intention of the
legislature. The Supreme Court had borne in mind the objects and
reasons for the amendment and also noticed the delaying tactics being
adopted by unscrupulous drawers of dishonoured cheques, causing
injustice to the payees, who have to spend considerable time and
resources in court proceedings.
8. Later, in Jamboo Bhandari's case (supra) the question that
came up for consideration was whether the direction to pay 20% of the
amount of compensation at the appellate stage was permissible or not.
After analysing the judgment in Surinder Singh Deswal's case (supra)
the Supreme Court held that when an application is filed for suspension of
sentence, the accused applies for grant of relief of suspension of sentence
without any condition. It was observed that when a blanket order is sought
by the appellant, the court has to consider whether the case falls within the
exception or not.
9. In order to appreciate the ratio and the consideration of the
Supreme Court, it is necessary to extract paragraphs 6 to 10 of the
judgment in Jamboo Bhandari's case (supra), which is as follows:
"6. What is held by this Court is that purposive interpretation should be made
of Section 148 of the N.1.Act. Hence, normally, Appellate Court will be
justified in imposing the condition of deposit as provided in Section 148.
However, in a case where the Appellate Court is satisfied that the condition of
deposit of 20% will be unjust or imposing such a condition will amount to
deprivation of the right of appeal of the appellant, exception can be made for
the reasons specifically recorded.
7. Therefore, when Appellate Court considers the prayer under Section 389
of the Cr.P.C. of an accused who has been convicted for offence under
Section 138 of the N.1.Act, it is always open for the Appellate Court to
consider whether it is an exceptional case which warrants grant of
suspension of sentence without imposing the condition of deposit of 20% of
the fine/compensation amount. As stated earlier, if the Appellate Court comes
to the conclusion that it is an exceptional case, the reasons for coming to the
said conclusion must be recorded.
8. The submission of the learned counsel appearing for the original
complainant is that neither before the Sessions Court nor before the High
Court, there was a plea made by the appellants that an exception may be
made in these cases and the requirement of deposit or minimum 20% of the
amount be dispensed with. He submits that if such a prayer was not made by
the appellants, there were no reasons for the Courts to consider the said
plea.
9. We disagree with the above submission. When an accused applies under
Section 389 of the Cr.P.C. for suspension of sentence, he normally applies
for grant of relief of suspension of sentence without any condition. Therefore,
when a blanket order is sought by the appellants, the Court has to consider
whether the case falls in exception or not.
10. In these cases, both the Sessions Courts and the High Court have
proceeded on the erroneous premise that deposit of minimum 20% amount is
an absolute rule which does not accommodate any exception."
10. A learned single Judge of this Court in Baiju v. State of Kerala
(2023 (7) KHC 669) came to the conclusion that a speaking order is
necessary even when the court directs deposit of 20% of the fine amount
under section 148 of the Act.
11. Though on a glance at the decision in Jamboo Bhandari's
case (supra), the above principle may seem to arise, on a closer reading,
this Court is of the view that the interpretation given by the learned Single
Judge in Baiju's case (supra) may not have laid down the correct law.
This Court feels that a reconsideration of the decision in Baiju's (supra)
case is necessary due to the reasons narrated below.
12. In Jamboo Bhandari's case it was observed that when an
accused who is already convicted seeks suspension of sentence,
normally, he applies for the grant of a blanket order of suspension.
13. The term 'blanket order' in the decision in Jamboo Bhandari's
case (supra) cannot be interpreted as a word used in a statute. The term
can only mean an order read in conjunction with the mandatory provisions
of section 148 of the Act. In other words, when a person prefers an
appeal, the order directing deposit of a minimum of 20% of the fine
ordered is mandatory. When a statute fixes a mandatory minimum, no
reason other than the stipulation in the statute alone is necessary to
impose such a condition. To provide reasons for imposing the mandatory
minimum deposit fixed by the statute is indeed superfluous. Only when a
variance is made from the statutorily fixed minimum need there be any
necessity for providing reasons.
14. A reading of paragraphs 6 to 10 of Jamboo Bhandari's case
(supra) will indicate that the requirement of giving reasons will arise only
when the statutorily fixed minimum is not directed. On the other hand, if a
higher amount or a lesser amount than 20% is stipulated by the court
under section 148 of the Act, only then would the need to state reasons
arise. Therefore, according to me, the requirement of giving reasons for
imposing the minimum amount fixed under section 148 of the Act is not
necessary. Reasons are to be given only when the minimum stipulated
amount under section 148 of the Act is varied. To that extent, the judgment
in Baiju's case (supra) requires reconsideration.
15. Apart from the above, a reading of section 148 of the Act does
not indicate that the deposit contemplated under the said provision is a
condition for suspending the sentence. The deposit stipulated under
section 148 of the Act is a mandatory requirement brought in by the
amendment to suppress the mischief of unscrupulous drawers, prolonging
the cases and continuing to delay payment of any amount to the drawee.
This is separate and distinct from the order suspending the sentence.
Therefore, when the statute prescribes a mandate, not as a condition for
suspending the sentence, but as a stipulation in an appeal, the need to
give specific reasons cannot be imported into the provision. The said
aspect has also not been considered in the judgment in Baiju's case
(supra). In this context, it is fruitful to refer to the decision in Ambili R. v.
Sree Gokulam Chit and Finance Company (P) Ltd and Another (2020
(1) KHC 476), wherein another learned single Judge of this court had
observed that it is for the accused to point out to the Appellate Court
special circumstances if any existing, for not making a direction under
section 148(1) of the Act. Baiju's case had not considered the aforesaid
decision in Ambili's case.
16. For the above two reasons, it is felt necessary that the matter
be considered by a Division Bench for an authoritative pronouncement
and to reconsider the correctness of the decision in Baiju's case (supra).
17. Considering that this is an issue that arises repeatedly in
various courts in the State, the Registry shall place these matters before
the Hon'ble the Chief Justice urgently, for reference to an appropriate
Division Bench for consideration.
Ordered accordingly.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
