Kerala High Court
V.Elias vs The State Of Kerala on 26 October, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
WEDNESDAY, THE 12TH DAY OF DECEMBER 2012/21ST AGRAHAYANA 1934
Crl.MC.No. 3827 of 2012 ()
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AGAINST THE ORDER/JUDGMENT IN CRRP.3821/2007 DATED 26-10-2007
CC.519/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERUMBAVOOR
PETITIONER(S)/ACCUSED:
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V.ELIAS, AGED 59 YEARS
S/O.VARGHESE, PROPRIETOR, UNIVERSAL TRADERS
ONAMPILLY HOUSE, PULLUVAZHY P.O., MALAMURY
ERNAKULAM DISTRICT.
BY ADV. SRI.T.MADHU
RESPONDENT(S)/STATE:
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1. THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682031.
2. LEELA, AGED 54 YEARS
W/O.P.O.MATHAI, PACHAMPARAMBIL HOUSE
VENGOLA VILLAGE, VALAYAMCHIRANGARA P.O.
KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN 683556.
3. ABY P.M., AGED 30 YEARS
S/O.MATHAI,PACHAMPARAMBIL HOUSE, VENGOLA VILLAGE
VALAYAMCHIRANGARA P.O., KUNNATHUNADU TALUK
ERNAKULAM DISTRICT, PIN 683556.
4. BIBIN.P.MATHEW, AGED 26 YEARS
S/O.MATHAI, PACHAMPARAMBIL HOUSE, VENGOLA VILLAGE
VALAYAMCHIRANGARA P.O., KUNNATHUNADU TALUK
ERNAKULAM DISTRICT, PIN 683556.
5. SIBIN.P.MATHEW, AGED 23 YEARS
S/O.MATHAI, PACHAMPARAMBIL HOUSE, VENGOLA VILLAGE
VALAYAMCHIRANGARA P.O., KUNNATHUNADU TALUK
ERNAKULAM DISTRICT, PIN 683556.
CRL.M.C.NO.3827/2012
6. OUSEPH, AGED 82 YEARS
PACHAMPARAMBIL HOUSE, VENGOLA VILLAGE
VALAYAMCHIRANGARA P.O., KUNNATHUNADU TALUK
ERNAKULAM DISTRICT, PIN 683556.
7. ELAMMA, AGED 74 YEARS
W/O.OUSEPH, PACHAMPARAMBIL HOUSE, VENGOLA VILLAGE
VALAYAMCHIRANGARA P.O., KUNNATHUNADU TALUK
ERNAKULAM DISTRICT, PIN 683556.
R BY PUBLIC PROSECUTOR R.RANJITH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
12-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.M.C.NO.3827/2012
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE-A1: COPY OF THE JUDGMENT DATED 26.10.2007 IN
CRL.R.P.NO.3821/2007 ON THE FILE OF THIS HONOURABLE COURT.
ANNEXURE-A2: COPY OF THE REVENUE RECOVERY NOTICE DATED 28.10.2011
ISSUED BY THE TAHSILDAR, KUNNATHUNADU UNDER SECTION 7 OF THE
REVENUE RECOVERY ACT.
ANNEXURE-A3: COPY OF THE REVENUE RECOVERY NOTICE DATED 28.10.2011
ISSUED BY THE DEPUTY TAHSILDAR REVENUE RECOVERY, KUNNATHUNADU
UNDER SECTION 34 OF THE REVENUE RECOVERY ACT.
ANNEXURE-A4: COPY OF THE LEGAL HEIR SHIP CERTIFICATE ISSUED BY THE
TAHSILDAR, KUNNATHUNADU TALUK.
ANNEXURE-A5: COPY OF THE PETITION IN M.P.NO.1299(A)/2012 IN C.C.NO.519/1999
ON THE FILE OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I,
PERUMBAVOOR DATED 5.7.2012.
ANNEXURE-A6: COPY OF THE ORDER DATED 21.7.2012 IN M.P.NO.1299(A)/2012 IN
C.C.NO.519/1999 ON THE FILE OF THE LEARNED JUDICIAL FIRST CLASS
MAGISTRATE'S COURT-I, PERUMBAVOOR.
//TRUE COPY//
P.A. TO JUDGE
S.S.SATHEESACHANDRAN, J.
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Crl.M.C.NO.3827 OF 2012
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Dated this the 12th day of December, 2012
O R D E R
Petitioner is the accused in a cheque case for the offence punishable under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act'. In revision before this Court, affirming his conviction, sentence imposed was modified as one of fine with direction fixing the time limit for such deposit and releasing of the sum on such deposit to the complainant. Evidently, petitioner did not comply with the direction depositing the sum before the court below within the time fixed. Meanwhile, the complainant passed away. Legal representatives of the complainant moved an application before the magistrate for withdrawing the complaint stating what is awarded as fine, which, on deposit, was directed to be realised, had been paid by the accused, and as such, they do not want to pursue the proceedings. Learned magistrate dismissed that application vide Crl.M.C.No.3827/2012 2 Annexure-A6 order. Against that order, petitioner has filed the above petition contending that the order passed by the magistrate is not legal and proper. Challenge by the petitioner against that order will not survive for consideration. Since conviction has already been entered into, no question of withdrawal of the complaint would arise.
2. However, it is open to petitioner to move an application before the magistrate to record payment, if any, effected to the legal heirs, for making necessary entries in the Fine Register of the court, and dropping of further proceedings in execution of the sentence imposed against him. If any such application is filed by the petitioner, learned magistrate is directed to take note of the guidelines given by this Court in Sivankutty v. John Thomas & Another (2012 (3) KHC 676 (DB)) and pass appropriate orders thereof.
3. I make it clear that if any such application is moved, for any enquiry to be conducted thereof, petitioner/accused has to cause production of the legal heirs of the complainant and cannot seek issue of notice to them. Annexure-A6 order will not Crl.M.C.No.3827/2012 3 stand in the way of the magistrate in passing appropriate orders.
Crl.M.C. is disposed of.
S.S.SATHEESACHANDRAN JUDGE prp