A party's right to appeal exists independent of compliance with compensatory deposit requirements, though non-compliance can vacate suspension orders.

JUDGMENT

The above Original Petition is filed with the following prayers:

“i. Pass appropriate order setting aside Exhibit P5 order dated 07-06-2023 passed by the Sessions Court, Pathanamthitta to the extent it hold that the first respondent is having right to proceed with the criminal appeal without depositing the compensation amount passed under Sec.148 of N.I.Act.

ii. Pass appropriate order directing the Sessions Court, Pathanamthitta not to proceed with Crl.Appeal No.74/2022 until the first respondent deposit 20% of the compensation amount as directed in Exhibit P2 order.

iii. Pass just and proper reliefs considering the facts and circumstances of the case and the prayer made at the time of hearing.”

2. Petitioner is the 1st respondent in Criminal Appeal No.74/2022 on the file of the Sessions Court, Pathanamthitta. The above Criminal Appeal was filed by the 2nd respondent herein challenging the conviction and sentence passed by the Judicial First Class Magistrate Court-I, Pathanamthitta in ST No.4794/2015 under Section 138 of the Negotiable Instruments Act . As per Ext.P2 order, the Sessions Court, Pathanamthitta suspended the sentence passed by the trial court on condition that the 2nd respondent shall deposit 20% of the compensation amount within two months. It is the case of the petitioner that the 2nd respondent has not deposited 20% of the compensation amount as directed in Ext.P2 order. Thereafter the counsel appearing for the 2nd respondent insisted for hearing the Criminal appeal without depositing the compensation amount as directed in Ext.P2 order, is the submission. Petitioner's counsel objected the same and contended that the 2nd respondent is not entitled to proceed with the appeal for the reason that he has not complied with the directions in Ext.P2 order for depositing the compensation amount. But the appellate court by Ext.P5 order held that, even though the 2nd respondent has not complied with Ext.P2 order passed under Section 148 of the , right of the 2nd respondent to proceed with the appeal will exist unless and until it is dismissed under Section 384 (1) Cr.P.C. Aggrieved by Ext.P5 order, this O.P(Crl.)

is filed.

3. Heard counsel appearing for the petitioner, counsel appearing for the 2nd respondent and the Public Prosecutor.

4. Counsel for the petitioner reiterated the contentions in the Original petition and takes me through Ext.P2 order passed by the Sessions Court, Pathanamthitta by which there was a direction to deposit 20% of the compensation. The counsel also takes me through Ext.P3 judgment passed by this Court in which it is stated that the Sessions judge has stated that three months time will be required to dispose the appeal, after depositing the amount. Counsel for the petitioner submitted that, without depositing the amount as ordered in Ext.P2, the Criminal appeal can not be heard by the Sessions Court. That request was rejected by the Sessions Court as per Ext.P5 order and the appeal is now posted for final hearing. The petitioner also relied on the judgment of the apex court to substantiate his case. The counsel relied on the judgment of the apex court in Criminal Appeal No. 2741/2023 and submitted that the matter may be remanded.

5. It is an admitted fact that an appeal is filed by the 2nd respondent challenging the conviction and sentence. It is also an admitted fact that the sentence is suspended by the Sessions Court as per Ext.P2 order with a condition that the 2nd respondent will deposit 20% of the compensation ordered by the trial court and will also execute a bond for Rs.1,00,000/- with two solvent sureties. Admittedly, the 2nd respondent has not paid the compensation amount of 20% as ordered in Ext.P2. If that be the case, Ext.P2 suspension order will vacate automatically. Petitioner can take appropriate steps to execute the sentence. But that is not a reason to delay the hearing of the appeal. First appeal against the conviction and sentence is the right of an accused. Therefore,