Zera Furniture vs State Of Kerala
2024 Latest Caselaw 25777 Ker

Kerala High Court

Zera Furniture vs State Of Kerala on 30 September, 2024

Author: K.Babu

Bench: K. Babu

                                                          2024:KER:72605
O.P(Crl) No.673 of 2024
                                          1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                          THE HONOURABLE MR.JUSTICE K. BABU
  MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
                              OP(CRL.) NO. 673 OF 2024
 AGAINST THE ORDER IN CRL.MP NO.3175/2023 IN CRA NO.216 OF
              2023 OF DISTRICT & SESSIONS COURT, KOTTAYAM
 ARISING OUT OF THE ORDER/JUDGMENT IN ST NO.260 OF 2021 OF
  JUDICIAL MAGISTRATE OF FIRST CLASS -II(MOBILE), KOTTAYAM

PETITIONERS/APPELLANTS/ACCUSED 1 TO 4:

       1         ZERA FURNITURE,
                 A.P.XIV.116, VALLITHODE, KANNUR
                 REPRESENTED BY ITS MANAGING PARTNER
                 ANEESH MATHEW, PIN - 670706

       2         ANEESH V M,
                 AGED 42 YEARS,
                 S/O MATHEW,MANAGING PARTNER, ZERA FURNITURE,
                 A.P XI.116, VALLITHODE, AYYANKUNNU, KANNUR,
                 KILIANTHARA, KERALA, PIN - 670706

       3         BINEESH MATHEW,
                 AGED 44 YEARS,
                 S/O MATHEW, MANAGING PARTNER, ZERA FURNITURE,
                 A.P XI.116, VALLITHODE, AYYANKUNNU, KANNUR,
                 KILIANTHARA, KERALA, PIN - 670706

       4         AJEESH MATHEW,
                 AGED 39 YEARS,
                 S/O MATHEW, MANAGING PARTNER,
                 ZERA FURNITURE,
                 A.P XI.116, VALLITHODE, AYYANKUNNU,
                 KANNUR, KILIANTHARA,
                 KERALA, PIN - 670706
                                                                 2024:KER:72605
O.P(Crl) No.673 of 2024
                                             2

                 BY ADVS.
                 SHINTO THOMAS
                 NAVANEETH.N.NATH
                 SAJEESH A.P.
                 ABHIRAMI S.




RESPONDENTS/RESPONDENTS/COMPLAINANT:

       1         STATE OF KERALA
                 REPRESENTED BY PUBLIC PROSECUTOR,
                 HIGH COURT OF KERALA,
                 ERNAKULAM, PIN - 682031

       2         MALAYALA MANORAMA,
                 CO.LTD, KK ROAD, PB.NO.26, KOTTAYAM,
                 REPRESENTED BY ITS AUTHORIZED OFFICER,
                 JOSEPH GEORGE, S/O GEORGE JOSPEH,
                 ARATHOTTIL HOUSE, KEEZHUKUNNU,
                 COLLECTORATE (PO), KOTTAYAM, PIN - 686002

                 BY ADV
                 SMT.NIMA JACOB, PUBLIC PROSECUTOR



         THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
30.09.2024,               THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                                                          2024:KER:72605
O.P(Crl) No.673 of 2024
                                       3



                                   K.BABU, J.
                    --------------------------------------
                             O.P(Crl) No.673 of 2024
                   ---------------------------------------
                   Dated this the 30th day of September, 2024

                                  JUDGMENT

The petitioners are accused Nos.1 to 4 in S.T No.260 of 2021 on

the file of the Judicial First Class Magistrate Court-II, Kottayam.

They have been convicted under Section 138 of the Negotiable

Instruments Act. Accused No.1 has been sentenced to pay a fine of

Rs.1,00,000/-, and accused Nos.2 to 4 have been sentenced to

imprisonment till the rising of the Court and also to pay a fine of

Rs.8,40,000/-. In default of payment of fine, the petitioners shall

undergo simple imprisonment for six months each.

2. The petitioners challenged the judgment of conviction and

sentence before the District and Sessions Court, Kottayam in Crl.A

No.216 of 2023. Along with the appeal, the petitioners filed an

application under Section 389 Cr.P.C seeking suspension of

sentence. The Sessions Court in the application under Section 389 2024:KER:72605

Cr.P.C suspended the sentence on condition that the petitioners

shall execute a bond for Rs.25,000/- (Rupees Twenty Five Thousand

only) each with two solvent sureties each for the like sum to the

satisfaction of the Trial Court and deposit 20% of the fine amount

before the Trial Court within the statutory period.

3. The learned counsel for the petitioners contends that the

Sessions Court has not assigned any reason for directing the

petitioners to deposit 20% of the fine amount imposed by the Trial

Court. The learned counsel further submitted that the Sessions

Court has passed a blanket order without considering whether the

case falls in the exception or not.

4. The learned counsel relied on Jamboo Bhandari v.

M.P.State Industrial Development Corporation Ltd. [2023 (6) KHC 80

(SC)] and Sreenivasan P. v Babu Raj [2024 (2) KHC 621 (DB)] to

substantiate his contentions. In Jamboo Bhandari, while

considering the scope of Section 148 of the Negotiable Instruments

Act, the Apex Court observed thus:

"6. What is held by this Court is that a purposive 2024:KER:72605

interpretation should be made of Section 148 of the N.I 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.I 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."

5. A Division Bench of this Court in Sreenivasan v. Babu Raj

held thus:

2024:KER:72605

"8. In our view, a reading of Section 148 of the N.I.Act as an exception to the general principles of suspension of sentence by an Appellate Court as contained in Section 389 of the Cr.P.C., and in the backdrop of the decisions of the Supreme Court in Surinder Singh Deswal and Jamboo Bhandari (Supra) would result in the following interpretation as regards the nature and manner of exercise of discretion by the Appellate Court under Section 148 of the N.I. Act:

(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 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."

6. In the impugned order, the Sessions Judge did not assign 2024:KER:72605

sufficient reason while ordering deposit of 20% of the fine amount

imposed by the Trial Court. The Sessions Court has also not

considered whether the case of the petitioners falls in the

exception or not. Therefore, the order impugned to the extent it

directed the petitioners to deposit 20% of the fine amount imposed

by the Trial Court stands set aside. The Sessions Court shall

consider Crl.M.P No.3175/2023 in Crl.A No.216/2023 afresh after

affording an opportunity of being heard to both sides in the light of

the precedents referred to above.

Coercive steps, if any, initiated against the petitioners based

on the impugned order stand recalled.

Sd/-

K.BABU, JUDGE KAS 2024:KER:72605

APPENDIX OF O.P(Crl) 673/2024

PETITIONER ANNEXURES

Exhibit P1 THE CERTIFIED COPY OF THE JUDGMENT IN ST NO.260/2021 BY THE HONOURABLE FIRST CLASS MAGISTRATE COURT II AT KOTTAYAM DATED 05.10.2023.

Exhibit P2                    THE CERTIFIED COPY OF THE PETITION WITH
                              CRL.APPEAL       NO.216/2023      DATED
                              01.11.2023.

Exhibit P3                    THE CERTIFIED COPY OF THE PETITION IN

CRL.M.P NO.3175/2023 DATED 01.11.2023. Exhibit P4 THE CERTIFIED COPY OF THE ORDER IN CRL.M.P NO.3175/2023 IN CRL.APPEAL NO.216/2023 DATED 06.11.2023.