Madras High Court
Arokiya Aswin vs K.Venkatesan on 5 February, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.2664 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.02.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.2664 of 2025
Arokiya Aswin ... Petitioner
Vs
K.Venkatesan ... Respondent
PRAYER: Criminal Original Petition is filed under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 to modify the condition that the
petitioner shall deposit 20% of the compensation amount before the Trial Court
at the credit of S.T.C.No.1746 of 2022 order passed by the Trial Court in
Crl.M.P.No.1 of 2025 in C.A.No.90 of 2025, dated 23.01.2025 on the file of the
Principal Sessions Judge, Chennai.
For Petitioner : Mr.Karthikeyan
for Mr.J.Ramesh
ORDER
This petition has been filed to modify the condition that the petitioner
shall deposit 20% of the compensation amount before the Trial Court at the
credit of S.T.C.No.1746 of 2022 in the order passed by the Trial Court in
Crl.M.P.No.1 of 2025 in C.A.No.90 of 2025, dated 23.01.2025 on the file of the
Principal Sessions Judge, Chennai.
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2. Heard the learned counsel appearing on either side and perused
the materials placed on record.
3. The petitioner is an accused in the complaint lodged by the
respondent alleging that the petitioner borrowed money and in order to repay
the same, the petitioner issued a cheque dated 22.11.2021 to the tune of
Rs.9,45,000/- and when the same was presented for collection, it got
dishonoured for the reason “funds insufficient”. After issuance of notice as
contemplated under Section 138 of NI Act, filed complaint.
4. After fulfledged trial, the Trial Court found the petitioner guilty
and convicted him for the offence punishable under Section 138 of NI Act and
sentenced him to undergo six months simple imprisonment and also awarded
compensation to the tune of the cheque amount, failing which to undergo two
months simple imprisonment. Aggrieved by the same, the petitioner preferred
an appeal in C.A.No.90 of 2025 along with an application to suspend the
sentence imposed by the Trial Court. The appellate Court suspended the
sentence of the petitioner imposed by the Trial Court, on condition that the
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petitioner shall deposit 20% of the compensation amount to the credit of the
Trial Court. However, the petitioner could not able to deposit the said amount
and as such, the petitioner was arrested and remanded to judicial custody on
03.12.2024.
5. The learned counsel for the petitioner would submit that after
borrowal of loan amount, the petitioner had repaid the entire loan amount with
interest. He categorically replied for the notice issued by the respondent under
Section 138 of NI Act and additional reply notice was also issued to the
respondent. Both the reply notices were marked as Exs.P6 and P7. Even then,
the Trial Court failed to consider the same and did not even discuss the reply
notices and mechanically convicted the petitioner. Further, the provisions under
Section 148 of NI Act is only directory in nature and it is not mandatory.
Therefore, the appellate Court ought not to have imposed any condition while
suspending the sentence.
6. In support of his contention, he relied upon the Judgment reported
in 2023 (10) SCC 446 in the case of Jamboo Bhandari Vs Madhya Pradesh
State Industrial Development Corporation Limited and other, in which the
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Hon'ble Supreme Court of India held as follows:-
“ 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.”
7. Thus, it is clear that though the appellant failed to plea that there is
an exceptional circumstances for not to impose any condition to deposit 20% of
the compensation amount, under Section 148 of NI Act, the accused filed an
application for grant of suspension of sentence. Therefore, the Court cannot
expect the accused to plea that it is an exceptional case for not imposing any
condition while suspending the sentence as contemplated under Section 148 of
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NI Act.
8. It is relevant to extract the provisions under Section 148 of NI Act
as follows:-
“ 148. Power of Appellate Court to order payment
pending appeal against conviction.-(1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973
(2 of 1974), in an appeal by the drawer against conviction
under section 138, the Appellate Court may order the
appellant to deposit such sum which shall be a minimum of
twenty per cent. of the fine or compensation awarded by the
trial Court:
Provided that the amount payable under this sub-
section shall be ine addition to any interim compensation paid
by the appellant under section 2 143-A.
(2) The amount referred to in sub-section (1) shall be
deposited within sixty days from the date of the order, or
within such further period not exceeding thirty days as may be
directed by the Court on sufficient cause being shown by the
appellant.
(3) The Appellate Court may direct the release of the
amount deposited by the appellant to the complainant at any
time during the pendency of the appeal:
Provided that if the appellant is acquitted, the Court
shall direct the complainant to repay to the appellant the
amount so released, with interest at the bank rate as published
by the Reserve Bank of India, prevalent at the beginning of the
relevant financial year, within sixty days from the date of the
order, or within such further period not exceeding thirty days
may be as directed by the Court on sufficient cause being
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shown by the complainant.”
9. Thus, it is clear that the appellate Court may order the appellant to
deposit to the tune of 20% of the cheque amount. Therefore, it is directory in
nature and not mandatory. However, depends upon the facts of the case, the
appellate Court can invoke the provisions under Section 148 of NI Act, while
suspending the sentence.
10. In the case on hand, a perusal of Exs.P6 and P7 are clear that the
petitioner had paid the amount which was borrowed by him with huge rate of
interest. Further, his wife one A.Priyadarshini did not even operate any amount
and she is no way connected to any transaction between the petitioner and the
respondent herein. The cheque which was presented by the respondent were
issued for the purpose of security and the respondent assured that after
repayment of the entire amount, the cheque leaves will be returned. However,
after making the entire payment with huge interest, the respondent failed to
return the cheque and presented for collection with an ulterior motive. Though
the petitioner had cross examined the respondent in this regard, the Trial Court
failed to discuss anything about the defence taken by the petitioner. Therefore,
the petitioner had made out a case for exceptional circumstances and the
appellate Court ought not to have imposed a condition to deposit 20% of the
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cheque amount while suspending the sentence of the petitioner. That apart, for
non compliance of the condition imposed by the appellate Court, now the
petitioner was arrested and remanded to judicial custody and he is incarcerated
imprisonment from 03.12.2024. In fact, about 1/3rd of his punishment has been
completed.
11. In view of the above, the condition imposed by the appellate
Court in Crl.M.P.No.1 of 2025 in C.A.No.90 of 2025, dated 23.01.2025 cannot
be sustained and is liable to be quashed. Accordingly, the condition imposed to
deposit 20% of the compensation amount before the Trial Court at the credit of
S.T.C.No.1746 of 2022 by the appellate Court in Crl.M.P.No.1 of 2025 in
C.A.No.90 of 2025, dated 23.01.2025, is hereby quashed.
12. The petitioner is ordered to be enlarged on bail on his executing
a bond for a sum of Rs.10,000/- with two sureties each for a like sum to the
satisfaction of the Metropolitan Magistrate, FTC-II, Egmore @ Allikulam,
Chennai. The appellate Court is directed to dispose of the appeal in C.A.No.90
of 2025, within a period of three months from the date of receipt of a copy of
this order.
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13. With the above directions, this Criminal Original Petition stands
is allowed.
05.02.2025
Internet:Yes
Index:Yes/No
Speaking/Non speaking order
mn
Note: Issue order copy on 05.02.2025
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To
1. The Principal Sessions Court, Chennai.
2. The Metropolitan Magistrate, FTC-II,
Egmore @ Allikulam, Chennai.
3. The Public Prosecutor,
High Court, Madras.
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G.K.ILANTHIRAIYAN. J,
mn
05.02.2025
https://www.mhc.tn.gov.in/judis
