The appellate court has the discretion to dispense with the requirement of deposit of 20% of the compensation amount in exceptional cases under Section 389 of the Cr.P.C.

ORDER

The above Crl.M.C is filed with following prayers:

“i.To set aside AnnexureA3 order and also to modify the conditions in Annexure A2 passed by the learned Sessions Judge Thrissur in the interest of justice.

ii. For a direction to keep the non bail able warrant against the petitioner in CC No.2333/2017 of JFCM Kodungalloor in abeyance till the disposal of this criminal M.C.

iii. To grant such other reliefs as this Honorable court may deem fit in the facts and circumstances of the Case.” (sic)

2. Annexure A2 is an order passed by the Sessions Court, Thrissur, by which the sentence imposed in Annexure A1 judgment is suspended with an additional condition of depositing 20% of the compensation amount ordered by the trial court. The petitioner filed an application to modify the order. The same is also dismissed as per Annexure A3 order. Aggrieved by the same, this Crl.M.C is filed.

3. Heard counsel for the petitioner. Even though notice is issued to respondents, there is no appearance.

4. The counsel for the petitioner submitted that in the light of the decision of the Apex Court in Jamboo Bhandari v. MP State Industrial Development Corporation Ltd. [2023 (6) KHC 80], the apex court observed that 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. That itself shows that the appellate court should consider the contentions of the petitioner by a speaking order. It will be better to extract the relevant paragraphs of the judgment in Jamboo Bhandari’s case (Supra).

6. What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 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 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.

10. In these cases, both the Sessions Courts and the High Court have proceeded on the erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception.”

underline supplied.

5. In the light of the above principle laid down by this Court, it is the duty of the appellate court to pass a speaking order, after adverting the contentions raised by the petitioner. As observed by the apex court, in a case where the appellate court is satisfied that t