IMPORTANT POINTS
To retrospective operation of the provision contained Section 148 of the Act has been re-iterated by the Apex Court in a very recent decision in Surinder Singh Deswal v. Virender Gandhi (judgment dated 08.01.2020 in Criminal Appeal Nos. 1936-1963 of 2019). The Apex Court has also held in this decision that, when suspension of sentence is ordered by the appellate court on the condition that deposit under Section 148 shall be made by the appellant and when the direction in that regard is not complied with by the appellant, the appellate court can hold that suspension of sentence stands vacated.

JUDGMENT :

R.NARAYANA PISHARADI, J.

This original petition is filed under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P4 order passed by the Court of Session, Thalassery.

2. The petitioner is the accused in the case S.T.No.98/2017 on the file of the Court of the Judicial First Class Magistrate-V, Kannur.

3. The aforesaid case was instituted upon the complaint filed by the first respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). After trial, the learned Magistrate found the petitioner guilty of the offence under Section 138 of the Act and convicted her there under and sentenced her to imprisonment till the rising of the court and also directed her to pay an amount of Rs.67,65,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of fifteen days.

4. The petitioner filed appeal before the Court of Session, Thalassery challenging the conviction entered against her and the sentence imposed on her by the trial court. The appeal was admitted by the Sessions Court.

5. The petitioner had filed Ext.P3 application for suspension of the sentence imposed on her by the trial court. Learned Sessions Judge allowed Ext.P3 application as per Ext.P4 order, which reads as follows:

“Heard the appellant. Sentence suspended on deposit of 20% of the compensation ordered by the trial court and executing a bond for Rs.1,00,000/- (Rupees One Lakh only) together with 2 solvent sureties each for a like sum. Two months time granted for deposit (In view of decision reported in 2019(3) KHC 355(SC)”.

6. Ext.P4 order is assailed by the petitioner on the ground that it has been passed by the court below without considering whether there were special reasons for not issuing a direction to her to deposit 20% of the amount of compensation awarded by the trial court.

7. Heard the learned counsel for the petitioner.

8. Learned counsel for the petitioner contended that the appellate court has passed Ext.P4 order mechanically. Learned counsel has contended that the appellate court did not consider whether the sentence imposed on the petitioner could be suspended without making a direction for deposit of 20% of the amount of compensation awarded by the trial court. Learned counsel would contend that the appellate court did not consider whether there were any special reasons for not issuing a direction to the petitioner to deposit 20% of the amount of compensation.

9. Section 148 (1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 percent of the fine or compensation awarded by the trial court.

10. Section 148 was introduced in the Act with effect from 01.09.2018. Section 148 (1) of the Act empowers the court, in which an accused has filed appeal against conviction, to direct him to deposit such sum which shall be a minimum of 20% of the amount of fine or compensation awarded by the trial court. Though the expression used in Section 148(1) of the Act is "may", it is generally to be construed as a "rule" or "shall". Absence of a direction by the appellate court to deposit 20% of the amount of fine or compensation can only by way of exception for which special reasons are to be assigned. Section 148 of the Act confers power upon the appellate court to pass an order pending appeal to direct the appellant-accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application filed by the appellant - accused under Section 389 of Cr.P.C to suspend the sentence (See Surinder Singh Deswal v. Virender Gandhi : AIR 2019 SC 2956). Therefore, in normal course, while suspending the sentence imposed on the ac