IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 Crl.MC.No. 2502 of 2008() ------------------------- AGAINST THE ORDER DATED 09/06/2008 IN CRMP 1388/2008 IN CRA.359/2008 of SESSIONS COURT, KOTTAYAM ST.2156/2005 of JUDL.MAGISTRATE OF FIRST CLASS, ETTUMANUR .................... PETITIONER: ------------ JOSE VARGHESE, THOOMPUNKAL HOUSE, OLESSA POST, KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENTS: ------------- 1. K.R. REJI, KAKKANATTU HOUSE, ETTUMANUR POST, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2502 of 2008 ------------------------------------------------- Dated this the 4th day of July, 2008 ORDER The petitioner has been found guilty, convicted and sentenced in a prosecution under Sec.138 of the Negotiable Instruments Act. He has preferred an appeal. The appeal has been admitted. Execution of the sentence stands suspended subject to conditions. The petitioner is aggrieved by one such condition imposed - that he should pay/deposit an amount of Rs.75,000/- as condition for suspension of sentence. According to the petitioner, the condition imposed is harsh and if insisted would deprive him of the right to prosecute the appeal. He will be forced to go to prison even before his appeal is taken up for consideration. In these circumstances, it is prayed that the condition imposed may be set aside. 2. It is by now trite that an appellate court is still within Crl.M.C. No. 2502 of 2008 -: 2 :- its jurisdictional competence to direct payment of part of the cheque amount while directing suspension of sentence in a prosecution under Sec.138 of the N.I. Act. The only question is whether, in the facts and circumstances of this case, such direction is not justified. The learned counsel for the petitioner only submits that the petitioner is facing very difficult financial situation and hence he is not able to make the payment. There is no contention that the discretion exercised to direct deposit is in itself bad for any reason. Of course, there is a submission that the quantum deserves to be reduced. 3. Having considered all the relevant inputs, I am satisfied that the petitioner can be granted further time to make the payment. To this extent alone, this Crl.M.C. can succeed. 4. In the result, this Crl.M.C. is allowed in part. Following directions are issued: (i) The petitioner shall pay half the amount of deposit i.e., an amount of Rs.37,500/- on or before 4/8/08. He shall have time till 4/9/08 to pay the balance amount. If the petitioner is unable to raise the balance amount, the petitioner can, while depositing the amount of Rs.37,500/- on or before 4/8/08, Crl.M.C. No. 2502 of 2008 -: 3 :- request the learned Sessions Judge to take up his case out of turn and dispose of the same. In that event, the learned Sessions Judge shall ensure that the appeal itself is disposed of by 4/9/08. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge