Kerala High Court
Sreerangan vs State Of Kerala on 22 July, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 22ND DAY OF NOVEMBER 2017/1ST AGRAHAYANA, 1939
Crl.MC.No. 5778 of 2017 ()
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CRA 556/2009 of ADDL. DISTRICT & SESSIONS COURT - IV,
THIRUVANANTHAPURAM
CC 985/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL
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PETITIONER/COMPLAINANT :
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SREERANGAN, S/O.SREEDHARAN,
'HAPPY', AVANAVANCHERY P.O.,
ATTINGAL, THIRUVANANTHAPURAM.
BY ADV. SRI.SHAJIN S.HAMEED
RESPONDENTS/STATE & ACCUSED:
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1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA AT ERNAKULAM.
2. KAUSALYA,
'GEETHANJALI', MARKET ROAD, ATTINGAL,
THIRUVANANTHAPURAM, PIN CODE : 695101.
R1 BY PUBLIC PROSECUTOR
R2 BY ADVS. SRI.M.DINESH
SRI. M DINESH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 22-11-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
bp
Crl.MC.No. 5778 of 2017 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE A: PHOTOCOPY OF THE JUDGMENT DATED 22.07.2009 IN
C.C.NO.985/2005 OF THE JUDICIAL 1ST CLASS
MAGISTRATE COURT-I, ATTINGAL.
ANNEXURE B: PHOTOCOPY OF THE JUDGMENT DATED 14.08.2014 IN
CRL.A.NO.556/2009 OF THE ADDITIONAL DISTRICT &
SESSIONS COURT-IV, THIRUVANANTHAPURAM.
ANNEXURE C: CERTIFIED COPY OF THE ORDER SHEET IN
C.C.NO.985/2005 OF THE JUDICIAL 1ST CLASS
MAGISTRATE COURT-I, ATTINGAL FROM 27.09.2014 TO
12.02.2015.
ANNEXURE D: PHOTOCOPY OF THE PETITION C.M.P.NO.1248/2015 IN
C.C.NO.985/2005 ON THE FILE OF THE JUDICIAL 1ST
CLASS MAGISTRATE COURT-I, ATTINGAL.
ANNEXURE E: PHOTOCOPY OF THE ORDER DATED 18.04.2016 IN
C.M.P.NO.1248/2015 OF THE JUDICIAL 1ST CLASS
MAGISTRATE COURT -I, ATTINGAL.
ANNEXURE F: COPY OF THE AFFIDAVIT FILED BY THE ADVOCATE
APPEARING FOR THE COMPLAINANT BEFORE THE
JUDICIAL 1ST CLASS MAGISTRATE COURT-I, ATTINGAL
IN CC NO. 985/2005.
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
ALEXANDER THOMAS, J.
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Crl.M.C.No.5778 Of 2017
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Dated this the 22nd day of November, 2017.
ORDER
The petitioner herein is the complainant in C.C.No.985/2005 on the file of the Judicial First Class Magistrate Court-I, Attingal, Thiruvananthapuram District, wherein the 2 nd respondent herein has been arrayed as accused for offence punishable under Sec.138 of the N.I. Act. Ext.P-1 cheque dated 8.6.2005 is for Rs.50,000/-. The trial court as per Anx-A judgment rendered on 22.7.2009 has convicted the 1st respondent herein for the above said offence and sentenced the accused to undergo simple imprisonment for 3 months and to pay compensation of Rs.50,000/- under Sc.357(3) of the Cr.P.C and in default thereof to undergo simple imprisonment for 2 months, etc. Aggrieved thereby, the accused had filed Criminal Appeal No.556/2009 before the appellate Sessions Court concerned. The appellate court concerned (Court of Additional Sessions Judge-IV, Thiruvananthapuram), as per Anx-B judgment rendered on 14.8.2014 has confirmed the conviction but has modified the substantive sentence of simple imprisonment for 3 months by reducing the same to ::2::
Crl.M.C.No.5778 Of 2017 imprisonment till the rising of the court and has confirmed the compensation amount of Rs.50,000/- and has also confirmed the default sentence. It is common ground that the accused has not preferred any Criminal Revision Petition before this Court to challenge Anx-B judgment and the matter in relation to conviction and sentence has thus attained finality pursuant to Anx-B judgment of the appellate court. Later, the case was posted before the learned Magistrate for execution of the sentence. On 12.2.2015, it has been recorded by the trial court that the case was advanced and the accused surrendered before the court and expressed his willingness to undergo simple imprisonment till the rising of the court and submitted that he has paid the compensation amount of Rs.50,000/- in compliance with the appellate court judgment. It is further reported by the learned Magistrate as per proceedings dated 12.2.2015 that the counsel for the accused and counsel for the complainant are present before the trial court and further stated that in compliance with the appellate court judgment, the accused has paid an amount of Rs.55,000/- in front of the office of the counsel for the complainant on 26.8.2014 and that the counsel for the complainant has also filed an affidavit sating the details of that transaction. Further the learned counsel for the complainant has ::3::
Crl.M.C.No.5778 Of 2017 also submitted before the Magistrate on that day that the complainant has himself filed a memo stating receipt of the above said amount in compliance with the appellate court's judgment and accordingly, the accused had undergone the substantive sentence of imprisonment till the rising of the court and on an application made on behalf of the complainant, the trial court has recorded that no further steps is required for execution of the sentence and about the compensation, etc. Anx-C is stated to be the proceedings sheet of the trial court, which also shows the proceedings on several days including 12.2.2015. Anx-F is stated to be the affidavit stated to have been filed by the counsel for the complainant before the trial court as recorded in the trial court's impugned order dated 12.2.2015. Later, the petitioner herein (complainant) had filed Anx-D application dated 28.3.2015 stating that as a matter of fact the complainant has not actually received the compensation amount of Rs.50,000/- in compliance with the appellate court's judgment and that the complainant has not received the amount as referred to in the order dated 12.2.2015 passed by the trial court. As a matter of fact, the complainant has not received the amount referred to therein and that the said memo signed and given by the counsel's assurance that the amount will be paid and the payment was never ::4::
Crl.M.C.No.5778 Of 2017 received by him, etc. Accordingly, the complainant has prayed in Anx-D application (Crl.M.P.No.1248/2015 in C.C.No.985/2005) to recall the impugned order dated 12.2.2015 passed by the trial court and to restore the execution proceedings. The trial court has passed the impugned Anx-E order dated 18.4.2016 rejecting Anx-D application of the complainant on the ground that such an application is not maintainable and further that the payments made to the complainant has been acknowledged through memo of the complainant as well as Anx-F affidavit of the complainant's counsel, etc. It is these orders passed on 12.2.2015 and Anx-E order dated 18.4.2016 that are under challenge in this petition.
2. Heard Sri.Shajin S.Hameed, learned counsel appearing for the petitioner-complainant, Sri.M.Dinesh, learned counsel appearing for R-2 (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State.
3. At the request of the complainant and the accused, both parties were referred to the mediation centre attached to this Court and now it is submitted that the mediation efforts turned out to be a failure. Learned counsel appearing for the complainant strongly urge that the complainant had signed a memo dated 26.8.2014 stating about the ::5::
Crl.M.C.No.5778 Of 2017 payment, the same was handed over to the complainant's counsel on the assurance that the compensation amount of Rs.55,000/- will be paid by the accused to the complainant and that he has never received the said payment either from the accused or from anyone else. It is also urged by the petitioner that the averments in Anx-F affidavit filed by the counsel for the complainant before the trial court is factually incorrect. Per contra, the learned counsel appearing for the 2 nd respondent (accused) would strongly urge that as a matter of fact the accused has paid the amount of Rs.55,000/- to the complainant in the presence of the complainant's counsel and in front of the office of the complainant's counsel on 26.8.2014 and that the said payment has been duly acknowledged by the complainant as per memo dated 26.8.2014 signed by none other than the complainant. It is further pointed out by the learned counsel for the petitioner-complainant that even in Anx-F affidavit filed by the complainant's counsel appearing before the trial court it has been stated that the complainant is disputing the payment of the amount, etc. In view of these rival submissions, this Court is not in a position to adjudicate on the rival factual pleas and the matter is to be dealt with by the trial court by taking evidence from the rival sides. In this view of the matter, the impugned order dated 12.2.2015 passed ::6::
Crl.M.C.No.5778 Of 2017 by the trial court is set aside. Resultantly, the impugned Anx-E order dated 18.4.2016 passed by the trial court will stand rescinded. Consequently, it is ordered that the proceedings for execution of the sentence in C.C.No.985/2005 pending before the trial court will stand restored to the file of the trial court concerned.
4. Sri.Shajin S.Hameed, learned counsel for the petitioner would submit that in view of the stand taken by the complainant's counsel before the trial court, the complainant has already changed his previous counsel and has engaged a new counsel before the trial court. The complainant, the counsel for the complainant, the accused and the counsel for the accused shall appear before the trial court at 11:00 a.m. on 6.1.2018. The complainant and the accused will be at liberty to adduce evidence, both oral and documentary, in order to prove their factual pleas. After granting a reasonable opportunity to both sides to adduce evidence and after hearing both sides, the trial court may take a considered decision as to the correctness of the rival pleas and then arrive at a considered conclusion as to whether the plea made by the complainant is factually correct or not and deal with the matter in accordance with law. If the trial court is convinced that the factual pleas made by the complainant is not proved, then it is open to the trial ::7::
Crl.M.C.No.5778 Of 2017 court to close the execution proceedings in accordance with law. If on the other hand, on the basis of evidence adduced as directed herein, the trial court is convinced that the factual plea made by the complainant is factually correct, then it may proceed further with the execution for the recovery of the due amounts in accordance with law. The trial court will render a decision as to whether or not the factual plea made by the complainant is correct or not, within 2 months from the date of production of a certified copy of this order. It is also made clear that none of the observations made by this Court in this order is to be construed as expression of opinion by this Court on the merits of the controversy, which is fully left to be decided independently by the court below concerned. Petitioner will produce a certified copy of this order before the trial court for necessary compliance.
With these observations and directions,, the Crl.M.C. stands finally disposed of.
Sd/-
ALEXANDER THOMAS, Judge.
Bkn/-
// True copy // P. A to Judge.