Kerala High Court
Leelamma Varghese vs Village Officer on 12 November, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934
Crl.MC.No. 3391 of 2012 ()
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AGAINST THE ORDER/JUDGMENT IN CRRP.4016/2007
DATED 12TH NOVEMBER, 2007
M.C.NO.91 OF 2010 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT, KATTAPPANA
PETITIONER(S):
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LEELAMMA VARGHESE
W/O. VARGHESE, MADAMKUNNEL HOUSE, MULAKARAMEDU P.O.
NIRMALACITY, KATTAPPAA.
BY ADVS.SRI.K.M.KURIAN
SRI.P.VIJAYAKUMAR
RESPONDENT(S):
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1. VILLAGE OFFICER
KATTAPPANA VILLAGE, KATTAPPANA-685 508.
2. THE DISTRICT COLLECTOR
PAINAVU, IDUKKI-685 603.
3. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682 031.
R BY PUBLIC PROSECUTOR SRI.R.RANJITH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
30-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.M.C.NO.3391/2012
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE-A: COPY OF ORDER OF THIS HONOURABLE COURT IN CRL.R.P.NO.4016
OF 2007.
ANNEXURE-B: COPY OF RECEIPT.
ANNEXURE-C: COPY OF ORDER OF THIS HONOURABLE COURT IN
CRL.M.C.NO.3549 OF 2010.
ANNEXURE-D: COPY OF ORDER OF JFCM, KATTAPPANA IN M.C.NO.91 OF 2010.
ANNEXURE-E: COPY OF WARRANT OF RECOVERY OF FINE ISSUED BY JFCM,
KATTAPPANA.
//TRUE COPY//
P.A. TO JUDGE
S.S.SATHEESACHANDRAN, J.
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Crl.M.C.NO.3391 OF 2012
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Dated this the 30th day of October, 2012
O R D E R
Petitioner is one among the sureties of an accused convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act'. Conviction of the accused was affirmed in appeal and also in revision. This Court, in revision, modified the sentence imposed against the accused directing him to pay fine with default term of imprisonment, fixing the time limit for compliance. It is submitted by the counsel that the accused had directly paid the fine to the complainant though it warranted remittance before the court. His lapse or default in effecting payment directly to the court was later, on his application, condoned by this Court. Annexure-C is the order passed by this Court holding that the payment effected by him to the complainant directly which was acknowledged by the counsel for the complainant was sufficient Crl.M.C.No.3391/2012 2 compliance of the sentence imposed over payment of fine. However, even before passing of Annexure-C order, on default of the accused to appear before the magistrate, proceedings under Section 446 of the Code of Criminal Procedure, for short, the 'Code' were initiated against the accused and his sureties, who included the petitioner. The learned magistrate vide Annexure-D order, after issuing notice to the sureties, to which both of them did not respond, imposed a penalty of Rs.25,000/-. Canvassing and banking upon Annexure-C order, by which, this Court has condoned the lapse of the accused in making payment of the fine, which was ordered to be paid as compensation to the complainant, learned counsel for the petitioner seeks quashing of Annexure-D order. It is submitted by the counsel that now distress warrant issued against the petitioner/surety is pending execution. Annexure-E is copy of the warrant issued for recovery of fine.
2. Looking into the annexures produced, more particularly, Annexure-D, it is seen the order was passed by the magistrate on Crl.M.C.No.3391/2012 3 11th May, 2010. That order also reflects that notice was issued to the sureties before imposing penalty against them. That notice has not been responded to by the sureties. A right of appeal is provided under Section 449 of the Code to any person against whom penalty is imposed on forfeiture of a bond, but that has not been availed by the petitioner/surety. Learned counsel for the petitioner contends that she was totally unaware of Annexure-D order and also the proceedings taken by the magistrate on forfeiture of the bond. That submission, on the face of Annexure-D order, which indicates of service of notice on the sureties, cannot be accepted. However, taking note of Annexure-C order, I find, penalty fixed at Rs.25,000/- can be modified and reduced limiting it to Rs.2,500/- overlooking the fact that the petitioner has not availed the statutory remedy of preferring an appeal against Annexure-D order. Accused had already paid the amount to the complainant and it was found as sufficient compliance of the sentence imposed, by this Court. That necessarily can be taken note of in limiting the penalty imposed against the petitioner to a sum of Rs.2,500/-. Crl.M.C.No.3391/2012 4
3. Petitioner shall pay the penalty as modified, that is, Rs.2,500/-, before the court below within a period of two weeks from today. To enable the petitioner to do so, the distress warrant issued against her is directed to be kept in abeyance for the above period.
Subject to the above direction, the Crl.M.C. is disposed of.
S.S.SATHEESACHANDRAN JUDGE prp