NISSAR PUTHALATH Vs. MUHAMMED

JUDGEMENT

(1.) This application is filed seeking to set aside Annexure-A3 order passed by Court of Sessions, Kozhikode (for short the Court below) in C.M.P. No. 118 of 2019 in Crl. Appeal No. 46 of 2019. Annexure-A3 order was passed by the aforesaid court in an application filed as C.M.P. No. 118 of 2019 under Section 389(1) Cr.P.C. The court concerned while allowing the application by order dated 25.1.2019 has directed the petitioner to execute a bond for Rs. 1,00,000/- with two solvent sureties each for the like sum to the satisfaction of the trial court and deposit 20% of the compensation amount. The petitioner is aggrieved by the direction in the order to deposit 20% of the compensation amount, as condition precedent to get the execution of the sentence suspended.

(2.) According to Sri Nirmal. S, the learned counsel, the Court below is highly unjustified in passing an order of the nature. The learned counsel has drawn the attention of this Court to Section 389 Cr.P.C. to contend that the only condition that could be imposed by the appellate court under the provision while suspending the sentence was to direct the petitioner to execute a bond with two solvent sureties each for the like sum to the satisfaction of the court. According to him, imposition of other conditions are not contemplated under Section 389(1) Cr.P.C. while exercising the power to suspend the execution of the sentence. It is contended that, deposit of 20% of the compensation/fine amount was directed by Section 148, newly introduced into the original Negotiable Instruments Act, 1881 (for short 'N.I. Act') by the N.I. Amendment Act, 2018 (Act 20 of 2018). According to him, Section 148 was brought into the Act with effect from 01.09.2018 and it contemplates exercise of discretion by the court concerned while passing a separate order with reasons. According to the learned counsel, the word used by the legislature in the provision being 'may', the deposit contemplated under the provision is not mandatory and therefore, the appellate courts ought not to have insisted for that in all appeals. According to the learned counsel, the legislature has purposefully omitted to incorporate the word 'shall' in the provision and therefore jurisdiction under Section 148 N.I. Act is not meant to be exercised mandatorily in all prosecutions. It is further contended by the learned counsel that sub-section (2) of Section 148 N.I. Act provides that the amount referred to in sub-section (1) thereof shall be deposited within sixty days from the date of the order, or within such further period pot exceeding thirty days, as may be directed by the Court on satisfactory reasons for not making the deposit within 60 days being shown by the appellant. According to the learned counsel, since there is provision for granting time for making the deposit as directed under sub-section (1), the court below ought not to have incorporated the direction to deposit the amount while an order to suspend the execution of the sentence being passed. The direction must have been issued by an independent order passed strictly under Section 148 N.I. Act. According to the counsel, in the case on hand it was not by a separate order Court of Sessions, Kozhikode has directed the petitioner to deposit 20% of the compensation amount but while suspending the execution of sentence. It is the contention of the learned counsel that the condition envisaged under Section 148 N.I. Act is not meant to be imposed by a court while issuing an order for suspension of execution of sentence under sub-section (1) of Section 389 Cr.P.C. The learned counsel has also contended that the provisions brought in by Amendment Act, 2018 were incorporated in Chapter XVII of the original N.I. Act under the head "penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts" and the deposit of the amount envisaged under the provision is penalty and therefore, is violative of Article 20 of the Constitution of India. Accordingly the learned counsel canvassed for setting aside the part of the order directing him to make deposit of 20% of the amount. Since the petition was heard in limine and in view of the nature, the order proposed to be passed carry, notice to the 1st respondent was dispensed with.

(3.) The order which incorporates the direction sought to be set aside was passed under sub-section (1) of Section 389 Cr.P.C. Therefore, it is apposite to extract the provision hereinunder for easy reference: