IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 Crl.MC.No. 2298 of 2008 --------------------------------- (M.P. 2408 /2007 IN CRL.A.632/2007 OF ADDL. DISTRICT & SESSIONS COURT-II, MAVELIKKARA IN C.C.NO.40/2005 OF JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM) .................... PETITIONER/PETITIONER/APELLANT/ACCUSED: --------------------------------------------------------------------- NAZEER, 32 YEARS, S/O.MUHAMMED EBRAHIM, MATHALANGATTU AZHIKAMVEEDU, THEKKUM BHAGOM, SOUTH PARAVOOR, KOLLAM. BY ADV. SRI.VINCENT JOSEPH. RESPONDENTS/RESPONDENTS/RESPONDENTRS/COMPLAINANT AND STATE: ---------------------------------------------------------------------------------------------------------------- 1. RAMADAS, AGED 40 YEARS, S/O.KRISHNAN ACHARY, ALACKAL VEEDU, PLACE WARD, KRISHNAPURAM,KAYAMKULAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2298 of 2008 ------------------------------------------------- Dated this the 19th day of June, 2008 ORDER The petitioner is found guilty, convicted and sentenced in a prosecution under Sec.138 of the Negotiable Instruments Act. Aggrieved by the verdict of guilty, conviction and sentence, he preferred an appeal. He further prayed that the execution of the sentence against him – a disabled person, may be suspended. The learned Sessions Judge, by the impugned order, directed suspension of execution of the sentence; but subject to terms. The petitioner is aggrieved by the direction to deposit an amount of Rs.15,000/- towards the amount due under the cheque as a condition for suspension. The cheque is for an amount of Rs.90,000/-. 2. It is by now trite that the appellate court is justified in an appropriate case to direct payment of part of the amount of Crl.M.C. No. 2298 of 2008 -: 2 :- fine/compensation. The only contention is that the discretion was not properly exercised by the learned Sessions Judge. Annexure-A2 is relied on to contend that the petitioner suffers from 80% disability. The learned counsel for the petitioner submits that if the condition were imposed, that would virtually deprive the petitioner of his right of appeal. He will be constrained to go to prison to serve the sentence even before his appeal is taken up for consideration on merits. 3. There is nothing available before me to show that the discretion was exercised incorrectly or perversely by the learned Sessions Judge. Except that the petitioner has a disability of 80% as shown in Annexure-A2, no other circumstances are shown. I am satisfied, in these circumstances, that appropriate directions can be issued. 4. In the result: (a) This Crl.M.C. is allowed in part. (b) It is directed that the petitioner shall deposit an amount of Rs.5,000/- before the learned Magistrate on or before 19/7/08. He shall have time of two months i.e., till 19/9/08 to pay the balance amount of Rs.10,000/-. If the petitioner is not able to raise the balance amount, he shall make a request to the learned Sessions Judge on or before 19/7/08 that his appeal may itself be Crl.M.C. No. 2298 of 2008 -: 3 :- disposed of and in that event the learned Sessions Judge must dispose of the appeal before 19/9/08 without insisting on any further deposit. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge