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
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
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
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
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
