Kerala High Court
Nizamudeen vs State Of Kerala
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY,THE 17TH DAY OF MARCH 2017/26TH PHALGUNA, 1938
Crl.MC.No. 2167 of 2017 ()
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CC.NO. 55/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM
ST.NO. 1936/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
KOTTARAKKARA
CRL.M.P.NO.244/2017 IN CRL.A.NO.15/2017 OF 1ST ADDITIONAL SESSIONS COURT,
KOLLAM
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PETITIONER/PETITIONER/APPELLANT/ACCUSED:
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NIZAMUDEEN,
S/O.MUHAMMAD ISMAIL, AGED 47 YEARS,
RESIDING AT ADAM VILAKAM VEEDU,
VETTOR P.O., CHIRAYINKIL TALUK,
TRIVANDRUM.
BY ADV. SMT.M.S.KIRAN
RESPONDENT(S)/STATE/ DE-FACTO COMPLAINANT:
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1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. MANAF,
S/O. EBRAHIM KUTTY, AGED 43 YEARS,
RESIDING AT THENNATT PUNNAVILA VEEDU,
MALAPPEROOR MURI, MANJAPPARA P.O.,
KOLLAM DISTRICT, PIN-688 562.
R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 17-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
Crl.MC.No. 2167 of 2017 ()
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEXURE A TRUE COPY OF THE JUDGMENT DATED 29.12.2016 IN CC 55/2014 BY
THE JFCM III COURT, KOTTARAKKARA.
ANNEXURE B TRUE COPY OF THE CRL. APPEAL NO. 15/2017 BEFORE THE
SESSIONS COURT, KOLLAM.
ANNEXURE C TRUE COPY OF THE CRL. MA NO.244/2017 BEFORE THE SESSIONS
COURT, KOLLAM.
ANNEXURE D TRUE COPY OF THE ORDER DATED 06.02.2017 IN
CRL.MA NO. 244/2017 IN CRL. APPEAL NO.15/2017 BY THE
SESSIONS COURT.
RESPONDENT(S)' ANNEXURES: NIL
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/TRUE COPY/
P.S.TO JUDGE
sts
ALEXANDER THOMAS, J.
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Crl.M.C.No. 2167 of 2017
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Dated this the 17th day of March, 2017
O R D E R
The petitioner is the accused for offence under Sec.138 of the Negotiable Instruments Act, in C.C.No.55/2014 on the file of the Judicial First Class Magistrate's Court-III, Kottarakkara, instituted on the basis of the complaint filed by the 2nd respondent herein. The trial court as per the impugned judgment rendered on 29.12.2016 has convicted the petitioner for the abovesaid offence and has sentenced him to undergo simple imprisonment till rising of the court and to pay compensation of Rs.7 lakhs under Sec.357(3) of the Cr.P.C. and in default thereof, the accused was to suffer simple imprisonment for a further period 3 months. Aggrieved thereby, the petitioner has preferred Crl.Appeal No. 15/2017 before the Sessions Court, Kollam, as can be seen from Anx.B appeal memorandum. The appellate court has admitted the said appeal and has also passed an order as per Anx.D order to suspend the impugned sentence and to grant bail to the petitioner on condition that the petitioner should deposit < of the compensation amount under Sec. 357(3) Cr.P.C. within 30 days and also to execute bond for Rs.1 lakh with 2 solvent sureties for the like sum. The petitioner is challenging Anx.D Crl.M.C.2167/17 - : 2 :-
order dated 6.2.2017 passed by the appellate court only to the limited extent that it has placed a condition that the petitioner should deposit < of the compensation amount of Rs.7 lakhs before the trial court within one month therefrom, etc..
2. Heard Smt.M.S.Kiran, learned counsel appearing for the petitioner accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. In the nature of the order that is proposed to be passed in this Crl.M.C., notice to R-2 will stand dispensed with.
3. The petitioner's counsel has submitted that the petitioner is facing extreme financial difficulties and is not in a position to deposit < of the compensation amount of Rs.7 lakhs before the trial court and that too within a short time granted by the court and further would submit that the direction in Anx.D that the petitioner should execute a bond for rupees one lakh with 2 solvent sureties for the like sum each, would have been more than sufficient in the interest of justice, as otherwise the petitioner's precious right to prosecute an appeal against the criminal conviction would be detrimentally affected, etc. Anx.D order reads as follows:
"Heard the petitioner's counsel. Perused the judgment. Execution of sentence suspended and bail granted on condition that the petitioner shall deposit < of the compensation awarded U/s.375(3) Cr.P.C. within 30 days and also executing a bond for Rs. One lakh within 2 solvent sureties for the like sum each."
4. On a consideration of the abovesaid plea of the petitioner, Crl.M.C.2167/17 - : 3 :-
this Court is of the view that the appellate court cannot be faulted with for having placed a condition for depositing some amount as part of the condition for suspending the impugned sentence. It is seen that the amount covered by Ext.P-1 dishonoured cheque dated 5.12.2012 is for Rs.4.5 lakhs and the compensation awarded by the trial court is Rs.7 lakhs. Accordingly, Anx.D order will stand modified as hereinafter::
The execution of the impugned sentence imposed on the petitioner as per the impugned judgment dated 29.12.2016 of the Judicial First Class Magistrate's Court-III, Kottarakkara, will stand suspended and bail granted to him, on the petitioner executing bond for Rs.25,000/- and on furnishing two solvent sureties for the like sum each to the satisfaction of the abovesaid trial court concerned. Further the petitioner will deposit < of the cheque amount within a period 2 months from 1.4.2017. The impugned Anx.D order will stand modified as directed above.
With these observations and directions, the Crl.M.C. stands finally disposed of.
sdk+ ALEXANDERSd/- THOMAS, JUDGE
///True Copy///
P.S. to Judge