[Cites 6, Cited by 0]
Kerala High Court
Ramesh Sivan vs State Of Kerala on 5 December, 2025
Author: C.S.Dias
Bench: C.S.Dias
CRL.MC NO. 11050 OF 2025
1
2025:KER:94359
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 5TH DAY OF DECEMBER 2025 / 14TH AGRAHAYANA, 1947
CRL.MC NO. 11050 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 27.09.2025 IN Crl.A NO.556
OF 2025 OF ADDITIONAL DISTRICT & SESSIONS COURT (POCSO),
MUVATTUPUZHA
PETITIONER/S:
RAMESH SIVAN
AGED 35 YEARS
S/O SIVAN, VATTAMMEL PARAMBIL VEEDU, KANINAD, KANINAD
P.O, PUTHENCRUZE VILLAGE, ERNAKULAM, KERALA -, PIN -
682310
BY ADVS.
SRI.K.J.JOSEPH (ERNAKULAM)
SHRI.KRISHNANUNNI G.B.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA ERNAKULAM COCHIN, PIN - 682031
2 SANDEEP MOHAN
AGED 60 YEARS, S/O MOHAN, KIZHAKKE VELLANGAL HOUSE,
THIRUMARADY KARA, THIRUMARADY VILLAGE, MUVATTUPUZHA
TALUK, KERALA-, PIN - 686662
OTHER PRESENT:
SR PP SRI C S HRITHWIK
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05.12.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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C.S.DIAS, J.
---------------------------------------------
Crl.M.C. No. 11050 OF 2025
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Dated this the 5th day of December, 2025
ORDER
Aggrieved by the judgment in CC No.662/2023 on the
file of the Court of the Judicial First Class Magistrate-III,
Muvattupuzha (Trial Court) convicting and sentencing the
petitioner for an offence punishable under Section 138 of the
Negotiable Instruments Act ('N.I.Act', in short), in a complaint
filed by the 2nd respondent, the petitioner had preferred
Crl.Appeal No.556/2025 before the Court of Session,
Ernakulam. The said appeal was made over to the Additional
Sessions Court, Muvattupuzha (Appellate Court). Along with
the appeal, the petitioner had filed petitions to suspend the
execution of the sentence and to waive statutory deposit of
20% as envisaged under Section 148 of the N.I.Act. By
Annexure A1 order, the Appellate Court has directed the
execution of the sentence to be suspended subject to the
condition the petitioner deposits 20% of the fine amount
within 60 days, and by Annexure A2 order, the Appellate Court
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has dismissed the petition to waive the statutory deposit.
Annexures A1 and A2 orders are erroneous and unjustifiable.
The Appellate Court has failed to consider the fact that the
petitioner is suffering from a dislocation of his right elbow,
which he sustained in an accident. He is undergoing treatment
including physiotherapy. The petitioner is a driver by
profession. Due to the present injury, the petitioner is unable
to eke out his livelihood. Even though the petitioner produced
treatment records to substantiate his injury, the Appellate
Court has rejected the same. In Baiju v. State of Kerala (2023
(7) KHC 669), this Court has categorically held that the
Appellate Court is bound to give reasons for ordering deposit
of the amount under Section 148 of the N.I.Act. Therefore,
Annexures A1 and A2 orders may be set aside.
2. I have heard the learned Counsel for the petitioner
and the learned Public Prosecutor.
3. The learned Counsel for the petitioner submits that
the petitioner is an autorikshaw driver by profession. Due to
the injury suffered in an accident, he is incapacitated from
carrying on his vocation. He had produced the necessary
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documents before the Appellate Court to prove the said
aspect. Annexures A3 and A4 certificates clearly reveal that
the petitioner has been advised to avoid strenuous activities
for a period of six months. This by itself shows that the
petitioner cannot do any work. Moreover, since the amount
involved in the cheque is Rs.5,90,000/-, the petitioner does not
have the means to raise the 20% of the above amount within
the stipulated time period. The petitioner has made out
exceptional circumstances to waive the statutory deposit
under Section 148 of the N.I.Act.
4. In Surinder Singh Deswal @ Col. S.S. Deswal and
others v. Virendar Gandhi (2019 (11) SCC 341), the
Honourable Supreme Court has categorically held that the
language under Section 148 of the N.I.Act is 'may' and not
'shall'. Therefore, the discretion is vested with the Appellate
Court to decide whether 20% of the fine/compensation amount
is to be deposited or waived, for suspending the sentence
imposed on the accused. The said provision has to be
purposefully interpreted in furtherance of the objects and
reasons of the amendment under Section 148 of the N.I.Act.
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5. The above view has been reiterated in Jamboo
Bhandari v. M.P.State Industrial Development Corporation Ltd
(2023 (6) KHC 80) by holding that when an accused applies
under Section 389 of the Cr.P.C. for suspension of sentence,
he normally applies for grant of relief for suspension of
sentence without condition. Therefore, when a blanket order is
sought by the appellant, the Appellate Court has to consider
whether the case falls within exceptional grounds. An identical
view has been taken by a Division Bench of this Court in
Sreenivasan P. v. Babu Raj (2024 (2) KHC 621), by holding
that the Appellate Court has a discretion to either order the
appellant to deposit a portion of the fine/ compensation
amount awarded by the Trial Court or to waive such deposit.
In either case, the Appellate Court has to give reasons for
exercising such statutory discretion.
6. In the present case, Annexures A3 and A4 medical
certificates undoubtedly reveal that the petitioner is
incapacitated due to an accident and is unable to carry out his
vocation. Therefore, he is under severe financial distress to
raise the necessary funds to make the deposit as ordered in
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Annexure A1 order. But, the Appellate Court, in the impugned
order has found that the dislocation of the elbow is not a
ground to waive the statutory deposit, and no exceptional
circumstances are made out to waive the statutory deposit
under Section 148 of the N.I.Act. I disagree with the findings
of the Appellate Court in view of Annexures A3 and A4
certificates. The said certificates establish that the petitioner
has made out exceptional circumstances to waive the statutory
deposit of the fine amount for the suspension of sentence. If
the said condition is imposed, the same may put the petitioner
to severe difficulty and prejudice. Nonetheless, I am of the
view that interest of justice can be met by directing the
Appellate Court to consider and dispose of the appeal, as
expeditiously as possible.
Accordingly, I allow the Criminal Miscellaneous Case
by setting aside Annexure A2 order and the condition in
Annexure A1 order directing the petitioner to deposit 20% of
the fine amount within 60 days. The execution of the sentence
against the petitioner would stand suspended on him
executing a bond for Rs.5,90,000/- with two solvent sureties
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for the like sum to the satisfaction of the Trial Court within
two weeks from today. Taking into consideration the fact that
the statutory deposit has been waived, the Appellate Court is
directed to consider and dispose of the appeal, in accordance
with law and as expeditiously as possible.
sd/-
C.S.DIAS, JUDGE
rkc/05.12.25
CRL.MC NO. 11050 OF 2025
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APPENDIX OF CRL.MC NO. 11050 OF 2025
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF SAID ORDER PASSED BY THE
ADDITIONAL SESSIONS COURT, MUVATTUPUZHA IN
CRIMINAL MP NO. 468/2025 IN CRIMINAL APPEAL
556/2025 DATED 27.09.2025
Annexure A2 THE CERTIFIED COPY OF ORDER IN CMP NO.
469/2025 IN CRIMINAL APPEAL 556/2025 IN THE
FILES OF ADDITIONAL SESSIONS COURT,
MUVATTUPUZHA DATED 27.09.2025
Annexure A3 THE TRUE COPY OF HIS MEDICAL REPORT ISSUED BY
THE CRESCENT POLYCLINIC, CHOONDY DATED NIL
Annexure A4 THE MEDICAL CERTIFICATE SHOWING THAT THE
PETITIONER IS ADVISED TO FOLLOW UP HIS
TREATMENT WITH PHYSIOTHERAPY FOR SIX MONTHS
ISSUED BY THE CRESCENT POLYCLINIC DATED
1/11/2
