IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 OP(CRL.).NO. 865 OF 2011(Q) --------------------------- CRA.586/2010 OF D.C. & SESSIONS COURT, ERNAKULAM CC.1256/2008 OF J.M.F.C.-I,KOCHI .................... PETITIONER: -------------------- KANNANUNNI, S/O. M.R. KRISHNAN, AGED 31 YEARS, ASWATHI NILAYAM, SAKTHI NAGAR, KANJIKKODE WEST, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): ------------------------ 1. JOY XAVIER, S/O.XAVIER, PULIKKAL HOUSE, KUMBALANGHI P.O., KOCHI - 682 007. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(Crl.) No.865 of 2011 -------------------------------------- Dated this the 1st day of March, 2011. JUDGMENT I have dispensed with notice to the first respondent in view of the order which I proposed to pass. 2. Petitioner was convicted by learned Judicial First Class Magistrate-I, Kochi in C.C.No.1256 of 2008 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) by judgment dated 24.10.2009 and was sentenced to undergo imprisonment for one year and to pay a fine of `.2,00,000/= with default sentence of imprisonment for three months. 3. Petitioner, since then met with a motor accident and was hospitalized and hence could not prefer an appeal on time. Petitioner however, preferred Crl.A.No.686 of 2010 before learned Sessions Court, Ernakulam with an application to condone the delay of 360 days and another application to suspend the sentence. 4. Learned counsel submitted that since notice could not be served on the first respondent/complainant on the application to condone the delay, that application could not be disposed of . In the mean time, a non bailable warrant is issued to the petitioner for his arrest to undergo sentence. Learned counsel therefore requested that OP(Crl.) No.865/2011 2 learned Sessions Judge, Ernakulam may be directed to consider and pass orders on Exts.P2, P3 and P4 forthwith and in the mean time pass appropriate orders as this Court deems just and proper. It is submitted by the learned counsel that in the above circumstances warrant of arrest issued to the petitioner may be kept in abeyance. 5. Having regard to the circumstances stated by the petitioner's counsel, I am inclined to grant some time to the petitioner so that in the mean time notice of application to condone the delay could be served on the first respondent and learned Sessions Judge could pass appropriate orders on the said application and the application for stay but it shall be subject to condition. Having regard to the circumstances petitioner shall deposit `.25,000/= in the trial court within a week from this date. Resultantly, this petition is disposed of in the following lines: i. Execution of the non bailable warrant if any issued against petitioner shall stand in abeyance for a period of one month or till learned Sessions Judge passed order on the application for suspension of sentence whichever is earlier on condition that petitioner deposits in the trial court `.25,000/= (Rupees Twentyfive thousand only) within a week from this day. ii. It shall be open to the petitioner to cause notice of the application for condonation of delay to be served on first respondent OP(Crl.) No.865/2011 3 within the said period and request the learned Sessions Judge to pass appropriate orders on the said application. THOMAS P.JOSEPH, Judge. cl