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2000 DIGILAW 418 (KER)

Ravi v. Aravindan

2000-08-10

K.A.MOHAMMED SHAFI

body2000
Judgment :- K.A. Mohamed Shafi, J. Heard counsel for petitioner and PP. The challenge in this Crl.M.C. is being against the order passed by the-appellate court in a petition seeking to suspend the sentence in a statutory appeal filed by the petitioner, notice to first respondent/ complainant is dispensed with. 2. In the judgment passed by the trial court in ST. No. 32/97 dt. 30.12.99 against the petitioner on the file of the JFCM III, Trichur, the learned Magistrate found the petitioner guilty of the offence punishable under S.138 of the Negotiable Instruments Act, convicted and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs. 5000/-. Petitioner preferred Crl. Appeal No. 38/2000 before the Sessions court, Trichur against the judgment passed by the trial court and moved Crl. M.P. 209/2000 to suspend the sentence. In that M.P. the learned Sessions Judge passed the following Order: "Notice given to the learned PP.1 do not find any satisfactory reasons to suspend the sentence. But I am satisfied that a lenient view can be taken and directions imposed to keep the execution of the sentence in abeyance subject to conditions: In the result, this petition is allowed. The execution of the impugned sentence shall stand suspended subject to the following terms and conditions: (i) The petitioner executes a bond for Rs. 60,000/- with two solvent sureties each for the like sum to the satisfaction of the learned JFCM III, Thrissur within 10 days and (ii) The petitioner/ appellant deposits an amount of Rs. 60,000/- before the learned Magistrate within a period of 60 days from this date. In case the petitioner is unable to comply with condition No. land is obliged to go to prison for default in payment, it shall be open to the petitioner/ appellant to move this court for an early hearing and disposal of the appeal." 3. Counsel for petitioner submitted that since the petitioner could not deposit Rs. 60,000/- within 60 days from the date of the order as directed by the Sessions Judge, he has been arrested on 5.8.2000 and is undergoing imprisonment being default sentence. 4. It is patent from the judgment passed by the trial court that the petitioner as the appellant prayed before the Sessions Court to suspend the sentence of simple imprisonment for three months and fine of Rs. 4. It is patent from the judgment passed by the trial court that the petitioner as the appellant prayed before the Sessions Court to suspend the sentence of simple imprisonment for three months and fine of Rs. 5000/- awarded against him by the trial court. The appellate court should be temperate and reasonable and should apply its judicial mind in a just and proper manner while passing orders in petitions filed by the appellant seeking suspension of sentence during the pendency of the statutory appeals preferred by him. Therefore the impugned order passed by the learned Sessions Judge being highly unjust and improper cannot be sustained. 5. The authority or competency of the appellate court to impose conditions while suspending sentence imposed by the trial court in the appeal preferred by the accused against the judgment passed by the trial court is well settled and cannot be disputed. But while the appellate court exercising the discretion in suspending the sentence imposed by the trial court, the conditions imposed should be commensurate with or proportionate to the sentence imposed by the trial court and sought to be suspended by the appellant. By no means the conditions imposed by the appellate court should be more onerous or stringent than the sentence imposed by the trial court. The conditions imposed by the appellate court while suspending the sentence should be just and reasonable and in accordance with natural justice. 6. In this case it is clear that the learned Sessions Judge without considering any of the above salient features while exercising his discretion to suspend the sentence imposed not only highly onerous but unjust and irrational conditions in directing the petitioner to execute a bond for Rs. 60,000/- and to deposit Rs. 60,000/- before the trial court within 60 days of the order to suspend the sentence passed by the trial court. While considering the application to suspend the sentence filed by the appellant in a statutory appeal, preferred by him, the appellate court should inform itself of the sentence passed against the petitioner by the trial court and the discretion exercised should be temperate, reasonable, just and proper. While considering the application to suspend the sentence filed by the appellant in a statutory appeal, preferred by him, the appellate court should inform itself of the sentence passed against the petitioner by the trial court and the discretion exercised should be temperate, reasonable, just and proper. Otherwise if conditions are imposed without any rhyme or reason without considering the nature and gravity of the sentence sought to be suspended and much more onerous conditions than the sentence sought to be suspended are imposed, the very purpose of filing the appeal and seeking to suspend the sentence will be defeated and it will result in manifest injustice. 7. As it is clear that the conditions imposed by the Sessions Judge in this case are unjust and unreasonable, those conditions cannot be sustained. Hence the impugned order is set aside. The petitioner is directed to be released from jail forthwith. The learned Sessions Judge is directed to consider Crl. M.P. 209/2000 filed by the petitioner afresh and pass appropriate orders in accordance with law and in the light of the above observations.