IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 13^TH DAY OF SEPTEMBER 2023 / 22ND BHADRA, 1945 OP(CRL.) NO. 541 OF 2023 AGAINST THE ORDER/JUDGMENT ST 4794/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PATHANAMTHITTA CRA 74/2022 OF DISTRICT COURT& SESSIONS COURT,PATHANAMTHITTA PETITIONER/FIRST RESPONDENT IN CRL.APPEAL NO.74/2022/COMPLAINANT IN S.T.NO.4794/2015:

JOJI J VARGHESE AGED 61 YEARS THUNDIYATHU HOUSE, EDASSERIMALA, ARANMULA P.O, PATHANAMTHITTA DISTRICT, PIN - 689533 BY ADVS.

V.PHILIP MATHEWS SABU THOMAS (KOZHENCHERRY)

GIBI.C.GEORGE RESPONDENTS/APPELLANT IN CRL.APPEAL NO.74/2022/ACCUSED IN S.T.NO.4794/2015 & THE STATE:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031

2 SAMUEL VARGHESE S/O.LATE P C VARGHESE, PURATHUMMURIYIL HOUSE, ERAVIPEROOR P.O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689542 BY ADVS.

SRI.MOHAN LAL B SRI.ASWIN V. NAIR(K/1019/2017)

SRI.ABIJITH M.(K/1226/2022)

SRI.VIPIN NARAYAN ,PP THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

P.V.KUNHIKRISHNAN, J.

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O.P.(Crl.)No.541 of 2023 ----------------------------------------------

Dated this the 13^th day of September, 2023

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 1^st respondent in Criminal Appeal No.74/2022 on the file of the Sessions Court, Pathanamthitta. The above Criminal Appeal was filed by the 2^nd 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 2^nd respondent shall deposit 20% of the compensation amount within two months. It is the case of the petitioner that the 2^nd respondent has not deposited 20% of the compensation amount as directed in Ext.P2 order. Thereafter the counsel appearing for the 2^nd 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 2^nd 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 2^nd respondent has not complied with Ext.P2 order passed under Section 148 of the Negotiable Instruments Act, right of the 2^nd 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 2^nd 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