S.Hariharan vs Sojan Varghese
2021 Latest Caselaw 5392 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                  THE HONOURABLE MR.JUSTICE V.G.ARUN

     MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942

                       Crl.MC.No.767 OF 2021(E)

AGAINST THE JUDGMENT IN CRA 144/2020 OF ADDITIONAL SESSIONS COURT
                      (ADHOC)-II, ERNAKULAM

 AGAINST THE    JUDGMENT IN CC 1885/2015 OF JMFC(SPECIAL COURT) FOR
               TRIAL OF SEC.138, NI ACT CASES (TEMPORA


PETITIONERS:

      1        S.HARIHARAN
               AGED 50 YEARS
               SRI. HARI, 6/913C, SOUBHAGYA NAGAR ROAD, THRIKKAKARA,
               KOCHI-682 021.

      2        MEENAKSHI HARIHARAN
               AGED 45 YEARS
               W/O. S.HARIHARAN, SRI. HARI, 6/913 C, SOUBHAGYA NAGAR
               ROAD, THRIKKAKARA, KOCHI-682 021.

               BY ADVS.
               SRI.A.T.ANILKUMAR
               SMT.V.SHYLAJA

RESPONDENTS:

      1        SOJAN VARGHESE
               AGED 48 YEARS
               S/O. P.J. VARGHESE, PANIKKASSERY HOUSE, CONVENT ROAD,
               KOCHI-682 035.

      2        STATE OF KERALA
               REPRESEMTED BY THE PUBLIC PROSECUTOR, SESSIONS COURT,
               ERNAKULAM.



               SR.PP.C.S.HRITHWIK

     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
15.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crmc 767/2021                        2




                                  V.G.ARUN, J.

                ===========================
                         Crl.M.C.No.767 of 2021
                ===========================
                  Dated this the 15th day of February, 2021

                                   ORDER

Learned counsel for the petitioner was fair enough to submit

that in the petition filed before the appellate court seeking suspension

of sentence, the extra ordinary circumstance warranting waiver of the

deposit under Section 148 of the N.I.Act was not specifically pointed

out. At the same time, the contention is that, the legal grounds raised

in appeal memorandum, are sufficient to convince the appellate court

to exempt the petitioner from remitting a portion of the fine amount.

As held by this court in Ambili R V. Sree Gokulam Chit and

Finance Co.Pvt Ltd & another(2020(1) KHC 476), the extra

ordinary circumstances should be made out by the appellant and it is

not the duty of the appellate court to search for extra ordinary

circumstances.

2. I am of the opinion that it would be appropriate to provide an

opportunity to the petitioner, to point out the extra ordinary

circumstances to the appellate court, particularly in view of the

contentions raised in the appeal. Therefore, Annexure D order is set

aside for the limited purpose of consideration of the application for

suspending the execution of sentence afresh. The petitioner is

permitted to make a fresh application for suspension, pointing out the

extra ordinary circumstances. If such an application is filed within one

week from today, learned Sessions Judge shall consider the same and

pass appropriate orders thereon expeditiously. Till such time execution

of the warrant pending against him shall be kept in abeyance.

Sd/-

V.G.ARUN JUDGE

lgk

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A THE TRUE COPY OF THE COMPLAINT IN CC NO.1885/2015 DATED 1.9.2015 JFCM (NI COURT) COURT PALLURUTHY.

ANNEXURE B THE TRUE COPY OF THE STATEMENT OF PW1, JFCM (NI ACT CASES) KOCHI DATED 3.9.2018.

ANNEXURE C THE TRUE COPY OF THE JUDGMENT IN C.C.NO.1885/15, JFCM (NI ACT CASE), ERNAKULAM DATED 14.2.2020.

ANNEXURE D THE TRUE COPY OF THE ORDER PASSED IN CRL.M.P.NO.746/2020 IN CRL.APPEAL NO.144/2020 SESSIONS COURT ERNAKULAM DATED 16.3.2020.