A speaking order is necessary for imposing the condition to deposit 20% of the compensation for suspending the sentence, as per the principle laid down by the Apex Court in Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd.

ORDER :

The petitioner was convicted and sentenced by the Judicial First Class Magistrate Court – II, Pala in S.T.No.31/2018, which was a prosecution under Section 138 of the Negotiable Instruments Act, 1881. He was sentenced to undergo simple imprisonment till the rising of the court and to pay a compensation of Rs.3,27,000/-(Rupees Three Lakhs Twenty Seven Thousand only) to the complainant and in default to undergo simple imprisonment for one month. It is also ordered that, if the compensation amount is realised, the same shall be given to the complainant in the case.

2. Aggrieved by the conviction and sentence, the petitioner filed an appeal before the Sessions court, Kottayam. The Sessions court suspended the sentence as per order dated 24.06.2023 in CMP No.44/2023 in Crl.Appeal No.109/2023 with a condition that the petitioner will deposit 20% of the compensation amount before the trial court within 60 days from the date of order. Aggrieved by the same, this Crl.M.C is filed.

3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. Even though notice was served on the 2nd respondent, there is no appearance for the 2nd respondent.

4. The short point raised by the petitioner is that, in the light of the decision of the Apex Court in Jamboo Bhandari v. M.P. State Industrial Development Corporation Ltd. [2023 (6) KHC 80], a speaking order is necessary if the court decides to impose a condition to deposit the amount as per Section 148 of the Negotiable Instruments Act. According to the petitioner, Annexure 3 order is not a speaking order.

5. This Court considered the contentions of the petitioner. In Jamboo Bhandari's case (supra) the Apex Court considered the powers of the appellate court under Section 148 of the Negotiable Instruments Act. It will be better to extract the relevant portion of the above judgment:

“6. What is held by this Court is that a purposive interpretation should be made of S.148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in S.148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded.

7. Therefore, when Appellate Court considers the prayer under S.389 of the CrPC of an accused who has been convicted for offence under S.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 S.389 of the 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.”

6. In the light of the above principle laid by the Apex Court, it is the duty of the Appellate court to give reason for imposing the condition to deposit 20% of compensation for suspending the sentence. There cannot be any blanket order to deposit 20% of the compensation for suspending the sentence in all cases.

Section 148