[S.138 NI Act] While Considering Suspension Of Sentence, Court Must See If Case Falls Under Any Exceptions: Andhra Pradesh HC Reiterates

The Andhra Pradesh High Court has reiterated that a plea for suspension of sentence is generally sought without any conditions, and when an accused seeks a blanket order like this, the responsibility is cast on the Court to determine whether the case falls under an exception.

Justice B.V.L.N. Chakravarthi was hearing a cheque bouncing case, wherein the petitioner was convicted by the Trial Court under section 138 of the NI Act, and sentenced to one year imprisonment along with compensation of Rs. 10 Lakhs, which is also the cheque amount. An appeal was filed against the order, and the sessions court suspended the trial court's order on the payment of 20% of the compensation.

The petitioner moved the High Court to modify or set aside the order. The high court set aside the order and remitted it back to sessions court for fresh disposal. However, the sessions court yet again suspended the lower court order subject to imposition of 20% compensation amount. Against this the petitioner moved the high court in the present plea.

Referring to the Supreme Court's decision in Jamboo Bhandari v. MP State Industrial Development Corporation Ltd &Ors. the high court said, “The Appellate Court in the impugned order referred to the above judgment of the Hon'ble Apex Court but failed to consider the observations of the Hon'ble Apex Court that, in general, an accused applies Section 389 CrPC to seek relief of suspension of sentence without any conditions. When an accused seeks a blanket order, it is the duty of the Court to determine whether the case falls under an exception. However, in the case at hand, the Appellate Court proceeded on the assumption that the petitioner did not provide or state any reasons for claiming an exception. The Sessions Judge merely rephrased the earlier order by adopting a pedantic approach, which is incorrect in light of the judgment of the Hon'ble Supreme Court. Therefore, overlooked the fact that when an appellant seeks a blanket order, the Court must consider whether the case falls under an exception.”

Section 389 CrPC pertains to suspension of sentence pending the appeal. As per this provision, pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

The high court observed that the appellate court's approach was not in line with the legal principles laid down by the Supreme Court in the case of Muskan Enterprises and another Vs. State of Punjab and another where the apex court had considered the principles in Jamboo Bhandari.

"Therefore, in the case on hand, the First Appellate Court failed to exercise its discretion appropriately and simply refused to exercise its discretion on the ground that the petitioner did not provide any grounds in the petition, despite the observation of the Hon'ble Apex Court extracted in the earlier order of this Court," the court said.

It further observed that order requires modification regarding the direction to deposit 20% of the compensation amount ordered by the trial court. Noting that the petitioner/appellant was suffering from ill-health since the onset of the COVID-19 pandemic, the court modified the order reducing the amount to “10%” of the compensation amount (i.e 10% of Rs. 10 Lakh) to be paid in eight weeks.

"The remaining order of the Sessions Judge shall remain in effect. If the petitioner fails to deposit the amount as ordered by this Court within the above stipulated timeframe, the Sessions Judge is authorized to proceed against the petitioner as per law," the court added.

Case title: Smt. Mekala Sudha Prameela Kantha vs. State of AP and Anr.

Counsel for petitioner: K.K. Durga Prasad.

Counsel for respondent: PP

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