[Cites 5, Cited by 0]
Kerala High Court
George Joseph vs State Of Kerala on 19 February, 2026
Author: C.S.Dias
Bench: C.S.Dias
CRL.MC NO. 1482 OF 2026
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2026:KER:14930
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 19TH DAY OF FEBRUARY 2026 / 30TH MAGHA, 1947
CRL.MC NO. 1482 OF 2026
AGAINST THE ORDER DATED 21.01.2026 IN CRMP 336/2025 IN
Crl.A NO.353 OF 2025 OF ADDITIONAL DISTRICT COURT, PALA ARISING
OUT OF THE ORDER/JUDGMENT DATED 29.11.2025 IN ST NO.5 OF 2019 OF
JUDICIAL MAGISTRATE OF FIRST CLASS II, PALA
PETITIONER/S:
GEORGE JOSEPH, AGED 50 YEARS
S/O JOSEPH, THAILAMANAL HOUSE, ARUVITHURA P.O,
ERATTUPETTA VILLAGE, KOTTAYAM DISTRICT, PIN - 686122
BY ADVS.
SHRI.BABY THOMAS
SRI.INDRAJITH S KAIMAL
SHRI.ALBERTHOVE FRANCIS.M.G.
SMT.EHLAS HALEEMA C.K.
SMT.ALICIA JOSE
SHRI.K.K.MOHANDAS
RESPONDENT/S:
1 STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 MIDHUN SCARIA, AGED 34 YEARS
S/O SCARIA, THUNDIYANPLACKAL HOUSE, EDAPPADY P.O,
BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT., PIN -
686578
SR.PP.SMT.SEETHA S.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
19.02.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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C.S.DIAS, J.
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Crl.M.C. No. 1482 OF 2026
-----------------------------------------------
Dated this the 19th day of February, 2026
ORDER
Aggrieved by Annexure A1 judgment passed by the
Court of the Judicial First Class Magistrate-II, Pala (Trial
Court) in ST No.5/2019, convicting and sentencing the
petitioner for an offence punishable under Section 138 of
the Negotiable Instruments Act ('N.I.Act', for brevity), the
petitioner has preferred Crl.A.No.353/2025 before the
Court of Session, Kottayam, which has been transferred
to the Additional Sessions Judge, Pala (Appellate Court).
Along with the appeal, the petitioner also preferred an
application to suspend the substantive sentence and also
the fine imposed on him. However, by the impugned
Annexure A5 order, the Appellate Court has directed the
petitioner to deposit 20% of the fine amount without
adverting to the exceptional circumstances made out by
the petitioner in the application to suspend the sentence.
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Annexure A5 order is erroneous and against the law laid
down by the Hon'ble Supreme Court in Jamboo Bhandari
v. M.P.State Industrial Development Corporation Ltd (2023
(6) KHC 80) and Surinder Singh Deswal @ Col. S.S. Deswal
and others v. Virendar Gandhi (2019 (11) SCC 341). The
Appellate Court has failed to consider the fact that the
petitioner is suffering from coronary artery disease and he is
in financial distress. Hence, Annexure A5 order may be
quashed.
2. I have heard the learned Counsel for the petitioner
and the learned Public Prosecutor. As the Crl.M.C. is filed
challenging an order conditionally suspending the sentence, I
dispense with notice to the 2nd respondent.
3. The learned Counsel for the petitioner submits that
the petitioner had specifically stated in the application to
suspend the sentence that he is suffering from coronary
artery disease and he is in financial distress. Therefore, the
petitioner is not in a position to deposit any amount as
envisaged under Section 148 of the N.I.Act. The learned
Counsel drew the attention of this Court to Annexure A3
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certificate issued by the petitioner's hospital to substantiate
that he had undergone a coronary artery bypass grafting on
20.09.2025 and was discharged on 27.09.2025. The learned
Counsel, therefore, prays that Annexure A5 order, to the
extent it directs the petitioner to deposit 20% of the fine
amount, may be waived.
4. In Surinder Singh Deswal' case (supra), 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.
5. The above view has been reiterated in Jamboo
Bhandari's case (supra) 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
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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. Both in Jamboo Bhandari & Surinder Singh
Deswal 's cases (supra), the Honourable Supreme Court has
categorically held that discretion of the Court is to be
exercised in cases where exceptional circumstances are made
out.
7. In the present case, in the application filed to
suspend the sentence, the petitioner has specifically
mentioned that he is suffering from coronary artery disease
and he is also under financial distress. The said assertion is
corroborated by the hospital that treated the petitioner. Thus,
I am convinced and satisfied that the petitioner has made out
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an exceptional circumstance to waive the statutory deposit of
the fine amount for the suspension of sentence.
Accordingly, I allow the Crl.M.C. by setting aside the
condition in Annexure A5 order directing the petitioner to
deposit 20% of the fine amount. Nonetheless, sentence
imposed on the petitioner would stand suspended subject to
the condition that the petitioner executes a bond for
Rs.6/- lakh with two solvent sureties for the like sum to the
satisfaction of the Trial Court within a period of two weeks
from today. Considering the fact that this Court has waived
the statutory deposit, I direct the Appellate Court to consider
and dispose the appeal, in accordance with law and as
expeditiously as possible.
sd/-
C.S.DIAS, JUDGE
rkc
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APPENDIX OF CRL.MC NO. 1482 OF 2026
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE JUDGMENT IN S.T NO. 5 OF
2019 OF JFMC-II, PALA DATED 29.11.2025.
Annexure A2 A TRUE COPY OF THE APPEAL MEMORANDUM DATED
22.12.2025 IN CRL APPEAL NO. 353/2025 FILED
BEFORE THE ADDL. DISTRICT & SESSIONS COURT
Annexure A3 A TRUE COPY OF THE CRL M.P NO. 336/2025
DATED 22.12.2025 WITH MEDICAL CERTIFICATE
DATED 27.09.2025 WHICH ARE FILED ALONG WITH
ANNEXURE A2 APPEAL MEMORANDUM BEFORE THE
DISTRICT AND SESSIONS COURT, KOTTAYAM.
Annexure A4 A TRUE COPY OF THE MEMO DATED 09.01.2026
FILED IN CRL M.P NO.353/2025 AS INSISTED BY
THE ADDL. DISTRICT AND SESSIONS JUDGE, PALA
Annexure A5 A TRUE COPY OF THE ORDER IN CRL. M.P
NO.336/2025 IN CRL. APPEAL NO.353 /2025
DATED 21.01.2026 BY THE ADDL. DISTRICT &
SESSIONS JUDGE, PALA
