Madras High Court
A. Chellan vs M.Nirmala on 19 February, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.1365 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.02.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No. 1365 of 2025 &
Crl.M.P.No.763 of 2025
A. Chellan ... Petitioner
Vs.
M.Nirmala
represented by Goutham Chand
(Power Agent),
Old No.16, New No.45,
Dr.Alagappa Road,
Purasawalkam, Chennai 600 084. ... Respondent
PRAYER: Criminal Original Petition is filed under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 to call for the records pertaining
to the order dated 22.08.2024 passed by the learned Sessions Judge,
Chennai in Crl.M.P.No.23595 of 2024 in Crl.A.No.620 of 2024, set aside
the same in so far as it relates to directing the petitioner to deposit 20 per
cent of the compensation amount ordered in C.C.No.2372 of 2013 by the
learned Metropolitan Magistrate FTC-IV, G.T.Chennai.
For Petitioner : Mr.Sharath Chandran
For Respondents : Mr.S. Ramesh Kumar
ORDER
This Criminal Original Petition has been filed to call for the records
pertaining to the order dated 22.08.2024 passed by the learned Sessions
Judge, Chennai in Crl.M.P.No.23595 of 2024 in Crl.A.No.620 of 2024, set
aside the same in so far as it relates to directing the petitioner to deposit 20
https://www.mhc.tn.gov.in/judis
per cent of the compensation amount ordered in C.C.No.2372 of 2013 by
the learned Metropolitan Magistrate FTC-IV, G.T.Chennai.
2. The petitioner was convicted and sentenced by the learned
Metropolitan Magistrate in C.C.No.2372 of 2013 for the offence committed
under section 138 of Negotiable Instruments Act by its judgment dated
29.07.2024. The trial court sentenced the petitioner to undergo 3 months SI
and directed him to pay compensation amount of Rs.18,40,000/- to the
complainant within one month from the date of order, in default, to
undergo three weeks simple imprisonment. Aggrieved against the
conviction and sentence imposed by the trial court, the petitioner preferred
appeal before the learned Sessions Judge, Chennai in Crl.A.No.620 of 2024
along with Crl.M.P.No.23595 of 2024 for suspension of sentence imposed
on the petitioner by the trial court.
3. Pending criminal appeal, the Appellate court suspended the
sentence imposed on the petitioner on condition that the petitioner shall
deposit 20% of the compensation amount to the credit of C.C.No.2372 of
2013 before the trial court within sixty days from the date of the order.
Challenging the condition imposed by the appellate court, the petitioner
https://www.mhc.tn.gov.in/judis
has filed the present criminal original petition.
4. Learned counsel for the petitioner submitted that the properties
owned by the petitioner were already mortgage with the respondent herein
and as such, the petitioner could not be able to mobilise funds to comply
with the condition of 20% deposit of the compensation amount imposed by
the appellate court . Further, the condition as contemplated under section
148 of Negotiable Instruments Act is not mandatory in nature and it is a
directory. Therefore, the appellate court, ought not to have imposed any
condition while suspending the sentence imposed upon the petitioner. In
support of his contention, he relied upon the decision of the Supreme Court
reported in (2023) 10 Supreme Court Cases 446 in the case of Jamboo
Bhandar Vs. Madhya Pradesh State Industrial Development Corporation
Limited and others.
5. In the above judgment rendered by the Supreme Court, it is held as
follows:
'7. Therefore, when the appellate court considers
the prayer under section 389 CrPC of an accused who has
been convicted for offence under section 138 NI 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, f
https://www.mhc.tn.gov.in/judis
the appellate court comes to the conclusion that it is an
exceptional case, the reasons for coming tot he said
conclusion must be recorded.
8. The submission of the learned counsel
appearing for the original complainant is that nither
before the Sessions Court nor before the High Court,
there was plea made by the appellants that an exception
may be made in these cases an 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 fro the courts to
consider the said plea.
9. We disagree with the above submission. When
an accused applies under section 389 CrPC 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.
10. In these cases, both the Sessions courts and the
High Court have proceeded on the erroneous premise that
deposit or minimum 20% amount is an absolute rule
which does not accommodate any exception.
and submitted that in the light of the above judgment, the appellate court
ought to have suspend the sentence of the petitioner without imposing
condition of deposit of 20% of the compensation amount. Therefore, he
prayed for setting aside the condition imposed on the petitioner to deposit
20 per cent of the compensation amount by allowing this criminal original
petition.
6. In the above decision, the Hon'ble Apex Court has held that the
https://www.mhc.tn.gov.in/judis
Appellate Courts have to see whether the case falls under exception for not
imposing any condition as contemplated under section 148 of Negotiable
Instruments Act while granting suspension of sentence.
7. On perusal of records, it reveals that the petitioner has not
mortgaged any property with the respondent while borrowing loan from
the respondent. The petitioner executed a pronote and borrowed the loan
amount for purchase of Mini Buses for transportation in and around
Marthandam. Towards repayment of loan, he issued post dated cheque(s) to
the respondent and when the same was presented for encashment, it was
dishonoured for the reason 'Funds Insufficient'. Therefore, the petitioner
failed to make out a case for any exception to suspend the sentence
imposed by the trial court without any condition. Therefore, the above
judgment is not applicable to the facts of the present case.
8. In view of the above discussion, this Court finds no infirmity or
illegality in the order passed by the Appellate Court imposing condition to
deposit 20% of the compensation amount while granting suspension of
sentence. Hence, this Criminal Original Petition is dismissed.
https://www.mhc.tn.gov.in/judis
9. At this juncture, the learned counsel for the petitioner would
submit that time to comply with the condition imposed by the appellate
court may be extended.
10. Considering the submission of the learned counsel for the
petitioner, time is extended till 28.02.2025 to comply with the condition
imposed by the appellate court. It is made clear that if the petitioner fails to
comply with the condition of deposit of 20% of the compensation amount
on or before 28.02.2025, the appellate court is directed to proceed against
the petitioner in accordance with law. Consequently, the connected
miscellaneous petition is closed.
19.02.2025
Index : Yes/No
Neutral citation : Yes/No
Speaking/non-speaking order
msr
To
1.The Sessions Judge, Chennai
2.The Metropolitan Magistrate FTC-IV, G.T.Chennai.
https://www.mhc.tn.gov.in/judis
G.K.ILANTHIRAIYAN, J.
msr
Crl.O.P.No. 1365 of 2025 &
19.02.2025
https://www.mhc.tn.gov.in/judis
