ASHA Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS criminal miscellaneous case is filed by the petitioner, for giving direction to the magistrate court to keep the execution of warrant issued against her, pending, till the delay condonation application and suspension application filed by her before the Sessions Court is disposed of, under Section 482 of the Code of Criminal Procedure.

(2.) IT is alleged in the petition that, the petitioner was arrayed as accused in C.C.No.34/2013 pending before the Judicial first Class Magistrate Court -II, Kasaragod, which was taken on file on the basis of a private complaint filed by the 2nd respondent, alleging offences under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act'). After trial, the learned magistrate found her guilty under Section 138 of the Act and convicted her there under and sentenced to undergo imprisonment till rising of court and also to pay a fine of 1,60,000/ -, in default to undergo, simple imprisonment for two months. Since she was ailing from Karnataka and laid up with jaundice, she could not file the appeal in time. Thereafter, she obtained the copy of Ext.A1judgment and filed Annexure -2 appeal as Crl.Appeal No.113/2014 along with Annexure -3 petition to condone the delay of 11 days in filing the appeal and Annexure -4 petition to suspend the sentence on 02.06.2014. Since there is delay in the filing of the appeal, notice was ordered in the delay application by the Sessions Judge and it was posted to 04.08.2014. In the meantime, learned magistrate had issued non -bailable warrant against the petitioner for execution of the sentence. Without condonation of delay, no effective orders could be obtained from the Sessions Court. So the petitioner has no other remedy, except to approach this court, seeking the following relief: "It is most humbly prayed that this Hon'ble Court may be pleased to direct the Principal Sessions Court, Kasaragod to consider and pass appropriate orders in Ann -A3 petition praying to condone the delay of 11 days in filing the Ann -A2 appeal and also in Ann -A3 petition praying to suspend the sentence imposed upon the petitioner by Ann -A1 judgment as expeditiously as possible and within a time frame fixed by this Hon'ble Court and in the meantime the learned Judicial First Class Magistrate's Court -II, Kasaragod may be directed to keep in abeyance the execution of the sentence imposed on the petitioner by Ann -A1 judgment, so as to secure the ends of justice".

(3.) CONSIDERING the nature of relief claimed in the petition, this court felt that, the petition can be disposed of at the admission stage itself, after hearing the counsel for the petitioner and the learned Public Prosecutor and dispensing with notice to the 2nd respondent/ defacto - complainant and after getting a report from the concerned court. Accordingly, a report has been called for from the Principal District and Sessions Judge, Kasaragod, in this matter and the learned Judge has sent a report which reads as follows: "Regarding the present stage of Crl.Appeal No.113/2014, I submit that the appeal was filed on 02.07.2014 before this court, along with a delay condonation application numbered as Crl.M.P.No.2514/'14. As the delay condonation application has not been disposed off, the appeal has not been admitted and it is being posted, along with the delay condonation application. Presently, the appeal stands posted to 04.08.2014. Regarding the time required for disposal of delay condonation application (Crl.M.P.No.2514/'14), I submit tht on filing of the said application, notice was ordered to the respondents, of whom respondent No.1 is the Prosecutor/complainant before the trial court, in the prosecution under Section 138 of the Negotiable Instruments Act. On 15.07.2014, respondent No.1 appeared through a counsel and the Crl.M.P.2514/'14 is posted to 04.08.2014, for objection of respondent No.1. In the normal situation, I hope, I will be able to dispose off the Crl.M.P.2514/'14 by hearing, on 04.08.2014 itself. If cost is to be ordered for condoning delay, a minimum of ten days may have to be granted for the appellant to pay the cost, in which event, I may have to provide time till 16.08.2014. At any rate, I submit that I will be able to dispose off the Crl.M.P.2514/'14 on or before 19.08.2014".