Kerala High Court
Sivankutty vs John Thomas @ Achan Kunju on 18 July, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
TUESDAY, THE 31ST DAY OF JULY 2012/9TH SRAVANA 1934
Crl.MC.No. 529 of 2012 ()
-------------------------
AGAINST THE ORDER/JUDGMENT IN CRRP.NO.2413/2008 IN CRA.68/2005 of
II ADDL.SESSIONS COURT, KOLLAM
C.C.NO.745/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PUNALUR
PETITIONER(S)/PETITIONER IN CRL.R.P.:
-------------
SIVANKUTTY
S/O.KUTTAPPAN, MEDAYIL PADINJATTETHIL VEEDU
ASURAMANGALAM, EDAMULACKAL P.O., ANCHAL (VIA),
PATHANAPURAM TALUK, KOLLAM DISTRICT.
BY ADVS.SRI.R.SURAJ KUMAR
SRI.P.KRISHNA KUMAR (ALAPPUZHA)
SRI.SUNIL J.CHAKKALACKAL
RESPONDENTS/1ST RESPONDENT IN CRL.R.P. & STATE:
---------------------
1. JOHN THOMAS @ ACHAN KUNJU
S/O.K.K.THOMAS, BETHEL HOUSE, MANALIL P.O.
YEROOR, PATHANAPURAM TALUK, KOLLAM DISTRICT. 691001
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SMT.AMBILY (PREMKUMAR)
BY PUBLIC PROSECUTOR SRI.R.RANJITH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
31-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.M.C.NO.529/12
APPENDIX
PETITIONER(S) EXHIBITS:
ANNEXURE A: TRUE COPY OF THE ORDER DATED 18/7/2008 IN CRL.REVISION
PETITION NO.2413/2008 ON THE FILE OF THIS HON'BLE COURT.
ANNEXURE B: TRUE COPY OF THE MEMO DATED 6/1/2011 IN CC.785/2003 ON
THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, PUNALUR.
ANNEXURE C: TRUE COPY OF THE APPLICATION DATED 6/1/2011.
ANNEXURE D: TRUE COPY OF THE CERTIFICATE DATED 3/12/2011 ISSUED BY
THE VILLAGE OFFICER, AYIRANELLOOR.
ANNEXURE E: CERTIFIED COPY OF THE NOTICE DATED 30/8/2011 IN
CC.785/2003 ON THE FILE OF THE JUDICAIL FIRST CLASS MAGISTRATE'S COURT-I,
PUNALUR, ISSUED TO THE IST SURETY.
ANNEXURE: F CERTIFIED COPY OF THE NOTICE DATED 30/8/2011 IN
CC.745/2003 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I,
PUNALUR, ISSUED TO THE 2ND SURETY.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE
S.S.SATHEESACHANDRAN, J.
-------------------------------
Crl.M.C.NO.529 OF 2012
-----------------------------------
Dated this the 31st day of July, 2012
O R D E R
Petitioner a convicted accused for the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', assails the order of the learned Magistrate declining his request for recording the payment of compensation made to the complainant and, further, taking of coercive steps against him and also his sureties on the premise that payment of compensation has not been made as directed. Revision filed by the petitioner challenging his conviction, as affirmed in appeal, was disposed by this Court vide Annexure-A order. Operative portion of that order reads thus:
"The revision petitioner is permitted either to deposit the said fine amount before the Court below or directly pay the compensation to the complainant within five months from today and produce a memo to that effect before the trial Court in case of direct payment. If he fails to deposit or pay the said amount within the aforementioned period he shall suffer simple Crl.M.C.No.529/2012 2 imprisonment for three months by way of default sentence."
Admittedly, the amount of fine/compensation due was not paid to the complainant within the time fixed. However, later, the amount was directly paid to the complainant, was his case to move an application before the Magistrate to record such payment and drop further proceedings against him. That application was rejected by the Magistrate, who, thereupon initiated coercive steps against him and also his sureties holding that there was default in payment of the fine/compensation awarded. Impeaching the correctness of the decision rendered and the coercive steps taken, petitioner has filed the above petition invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, for short, the 'Code'. Previously, after hearing the submissions made by the learned counsel for the petitioner, doubting the correctness of the bench decision rendered by this Court in Beena v. Balakrishnan Nair (2010 (2) KLT 1017), a reference was made along with another petition Crl.M.C.No.2202 of 2011, in Crl.M.C.No.529/2012 3 which also, identical question arose for consideration. The reference has been answered by the Division bench vide order dated 8th June, 2012. Observations made in answering such reference, I find, are sufficient for disposal of this petition. In answering the reference, taking note of the operative portion in Annexure-A order passed in revision, the Division bench has stated thus:
"............................ order of this court provides for payment of compensation directly to the complainant and produce a memo to that effect before the trial court. The only defect is that he did not pay or deposit the amount within the time provided under the said judgment. But that does not mean that the sentence will be altered. the sentence will continue to be a sentence of fine, which could be paid either to the court or directly to the complainant and in default to undergo simple imprisonment for three months."
When that be so, the question is only having an enquiry whether the case canvassed by the petitioner as to payment of compensation directly to the complainant is true or not, and if it is found acceptable, then of making necessary entries in the fine register and closing the proceedings. The 1st Crl.M.C.No.529/2012 4 respondent/complainant has also entered appearance in the present proceedings, and the learned counsel appearing for that respondent would also submit that compensation due has already been paid by the accused. Any how, that is a matter to be taken note of by the Magistrate on the application moved by the accused for recording such payment. In the above circumstances, coercive steps taken by the Magistrate against the petitioner/accused and his sureties declining the request of the accused for recording the payment are quashed. The learned Magistrate shall conduct an enquiry on the request made by the petitioner/accused for recording the payment, and to facilitate such enquiry parties are directed to appear before the Magistrate on 16.08.2012. The Magistrate on the basis of such enquiry shall pass appropriate orders in accordance with law.
Crl.M.C. is disposed of.
S.S.SATHEESACHANDRAN JUDGE prp