Kerala High Court
Biju K Divakaran vs State Of Kerala on 24 September, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
2024:KER:70878
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
CRL.MC NO. 7751 OF 2024
AGAINST THE ORDER DATED 20.05.2024 IN CRA NO.103 OF 2024
OF ADDITIONAL DISTRICT AND SESSIONS COURT, PALA
PETITIONER/ACCUSED:
BIJU K DIVAKARAN
AGED 49 YEARS
S/O DIVAKARAN,
KAZHUNNATTIL HOUSE, PIRAVOM KARA,
PIRAVOM VILLAGE, PIRAVOM (P O),
MUVATTUPUZHA TALUK, ERNAKULAM DIST, PIN - 686664
BY ADVS.
JOHN T.PAUL
P.R.RAJESH
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 M/S. CENTRAL FINANCIAL CREDIT & INVESTMENT-
CO-OPERATIVE INDIA LTD
REPRESENTED BY ITS MANAGING DIRECTOR IN CHARGE,
K.J JOSEPH,
AGED 58 YEARS,
OPPOSITE CHERUPUSHPAM HOSPITAL,
PALA, KOTTAYAM DIST, PIN - 686575
BY ADV. C.N. PRABHAKARAN,
PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
24.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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Crl.M.C.No.7751 of 2024
-:2:-
BECHU KURIAN THOMAS, J.
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Crl.M.C.No.7751 of 2024
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Dated this the 24th day of September, 2024
ORDER
Petitioner is the accused in S.T.No.29/2023 on the files of the
Judicial First Class Magistrate's Court-II, Pala. He was convicted for the
offence under Section 138 of the Negotiable Instruments Act, 1881 (for
short, 'N.I.Act'). As per Annexure A1 judgment, he was directed to pay a
compensation of Rs.7,00,000/-. In the appeal filed as Crl.A.No.103/2024,
the learned Sessions Judge had by the impugned order dated 20.05.2024
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.John T. Paul appearing for the petitioner as
well as Sri. C.N.Prabhakaran, the learned Public Prosecutor.
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
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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 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-A4 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.
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6. The learned counsel for the petitioner submitted that though
a petition had been filed as Annexure-A5 for enlargement of time, the said
application has not yet been considered. Since the said application has
not been considered, the principle of approbate and reprobate will not
apply. Therefore, the impugned order ought to be set aside and a
reconsideration be directed.
7. Accordingly, the order dated 20.05.2024 in
Crl.M.P.No.107/2024 in Crl.A.No.103/2024 on the files of the Sessions
Court, Pala, 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
four 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
jka/24.09.24
2024:KER:70878
PETITIONER'S ANNEXURES
Annexure A 1 TRUE COPY OF THE ORDER OF THE HON'BLE
JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
PALA IN ST NO.29/2023 DATED 17.4.2024.
Annexure A 2 TRUE COPY OF THE CRIMINAL APPEAL
NO.103/2024 BEFORE THE HON'BLE ADDITIONAL
DISTRICT AND SESSIONS COURT, PALA.
Annexure A 3 TRUE COPY OF THE CRL M.P NO.107/2024 IN
CRIMINAL APPEAL NO.103/2024 FILED BEFORE
THE HON'BLE ADDITIONAL DISTRICT AND
SESSIONS COURT, PALA.
Annexure A 4 CERTIFIED COPY OF THE ORDER OF THE HON'BLE
ADDITIONAL DISTRICT AND SESSIONS COURT,
PALA IN CRL M.P NO.107/2024 IN CRIMINAL
APPEAL NO.103/2024, DATED 20.5.2024BEFORE
THE HON'BLE ADDITIONAL DISTRICT AND
SESSIONS COURT, PALA.
Annexure A 5 TRUE COPY OF THE PETITION FOR ENLARGEMENT
TIME CRL M P NO.170/2024 IN CRIMINAL
APPEAL NO.103/2024 FILED BEFORE THE
HON'BLE ADDITIONAL DISTRICT AND SESSIONS
COURT, PALA.
Annexure A 6 TRUE COPY OF THE PETITIONER'S INCOME
CERTIFICATE ISSUED BY THE PIRAVOM VILLAGE
OFFICER NO. 86204001 DATED 14.06.2024.
Annexure A 7 TRUE COPY OF THE RELEVANT PORTION OF
PETITIONER'S RATION CARD NO. 1740033237.
