Kerala High Court
Rejimon K.K vs State Of Kerala on 28 February, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939
OP(Crl.).No. 505 of 2017 (Q)
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ST 135/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - IV,
KOTTAYAM.
.......
PETITIONER/ACCUSED:
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REJIMON K.K., S/O.KUNJACHAN,
KURUVANTHOOR HOUSE, AMAYANNOOR P.O.,
AYARKUNNAM, KOTTAYAM, PIN - 686 019.
BY ADVS.SRI.M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
SRI.ARUN BOSE
RESPONDENTS/STATE, DEFACTO COMPLAINANT & CW2:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682 031.
2. ABT CHITS AND FINANCE AYARKUNNAM (P) LTD.,
CENTRAL JUNCTION, AYARKUNNAM,
REPRESENTED BY ITS MANAGING DIRECTOR,
ANTONY JOSEPH, PIN - 686 564.
R1 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 19-09-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
mbr/
OP(Crl.).No. 505 of 2017 (Q)
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APPENDIX
PETITIONERS' EXHIBITS:
EXT. P1 : TRUE COPY OF THE COMPLAINT IN S.T.NO.135/2016 ON
THE FILES OF THE HON'BLE JFCM-IV, KOTTAYAM.
EXT. P2 : TRUE COPY OF THE JUDGMENT DATED 28.2.2017 IN
S.T.NO.135/2016 OF THE HON'BLE JUDICIAL FIRST
CLASS MAGISTRATE COURT-IV, KOTTAYAM.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
mbr/
ALEXANDER THOMAS, J.
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O.P.(Crl).No.505 of 2017
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Dated this the 19th day of September, 2017
O R D E R
The prayer in this Original Petition filed under the enabling provisions contained in Article 227 of the Constitution of India is as follows:
"(i) To set aside Exhibit P2 judgment dt.28.02.2017 in S.T.No.135/2016 of the Hon'ble Judicial First Class Magistrate Court-IV, Kottayam and all proceedings pursuant thereto.
(ii) to issue such other further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of this case."
2. The petitioner has been indicted for the offence punishable under Section 138 of the Negotiable Instruments Act in Ext.P1 complaint in S.T.No.135/2016 on the files of the Judicial First Class Magistrate Court IV, Kottayam, filed by the 2nd respondent herein.
3. The dishonoured cheque dated 10.09.2014 involved in this case is for an amount of Rs.61,740/-. It appears that the petitioner had opted for the plea bargaining process as envisaged in Chapter XXI A of the Code of Criminal Procedure, 1973, whereby the trial court concerned (Court of Judicial First O.P.(Crl).No.505 of 2017 2 Class Magistrate Court IV, Kottayam), has accepted the said plea bargaining and has thus convicted the petitioner for the aforesaid offence and sentenced him to undergo simple imprisonment till rising of the court and directed him to pay fine of Rs.60,000/- within 5 months and that the fine amount so realised was directed to be disbursed to the complainant as compensation and on failure to pay the above said amount, he will have to undergo simple imprisonment for a period of three months etc.
4. According to the petitioner some of the mandatory provisions contained in Chapter XXI A of the Cr.P.C, more particularly Sec.265 B(4) thereof has not been complied with by the trial court and that Ext.P2 judgment is vitiated on that account. In the light of these contentions, the petitioner has preferred the instant petition by virtue of the enabling provisions contained in Article 227 of the Constitution of India with a prayer to set aside Ext.P2 judgment etc.
5. Heard Sri.M.V.Thamban, learned counsel appearing for the petitioner(accused) and Sri. Jestin Mathew, learned Prosecutor appearing for R1,State. In the nature of the orders proposed to be passed in this petition, notice to R2 O.P.(Crl).No.505 of 2017 3 (complainant) will stand dispensed with.
6. Sri.M.V.Thamban, learned counsel appearing for the petitioner(accused) submits on the basis of instructions from his party that the petitioner is not challenging the legality and correctness of the impugned Ext.P2 judgment rendered by the trial court and that the petitioner would only pray that this Court may grant 5 months' time to remit the fine amount of Rs.60,000/- before the trial court in relation to this case and that the said amount may be directed to be disbursed as compensation to the complainant in terms of Section 357(1)
(b) of the Cr.P.C.
7. In view of these submissions, this Court is of the view that the said limited plea made by the petitioner could be granted. Accordingly, the following directions and orders are passed.
(i) The petitioner is given 5 months' time from 1.10.2017 to remit the fine amount of Rs.60,000/- before the trial court.
(ii) The petitioner will personally appear before the trial court at 11 a.m on 6.03.2018 and remit the fine amount of Rs.60,000/-. The said fine amount so realised shall be disbursed by the trial court to the complainant as compensation as envisaged under Section 357(1)
(b) of Cr.P.C and on default to pay the aforesaid amount he will have to undergo simple imprisonment for a period of three months as directed in Ext.P2 judgment.
(iii) Until 6.03.2018, all further coercive steps that may be taken against the petitioner for execution of the impugned sentence in this case will stand deferred.
O.P.(Crl).No.505 of 2017 4
(iv) On failure of the petitioner either to appear before the trial court on 6.03.2018 or on his failure to pay the above said fine amount, the trial court will be at liberty to proceed against the petitioner in accordance with law.
(v) The impugned Ext.P2 judgment rendered by the trial court will stand modified as ordered hereinabove.
With these observations and directions, the Original Petition(Crl) will stand finally disposed of.
Sd/-
ALEXANDER THOMAS JUDGE IAP