Kerala High Court
Sajesh vs Sunandha
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939
OP(Crl.).No. 252 of 2017 (Q)
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JUDGMENT DATED 23-01-2016 IN CC 224/2014 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, CHAVAKKAD
....
PETITIONER(S):
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SAJESH,
AGED 42, S/O. JANYAN,
MANDAKATHINKAL (H),
KANDANASSERY VILLAGE DESOM,
TALAPPILLY TALUK,
THRISSUR DISTRICT.
BY ADV. SRI.S.RENJITH
RESPONDENT(S):
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1. SUNANDHA,
AGED 63, W/O. RAGHAVAN,
MANCHIRAMBATH HOUSE, GURUVAYOOR DESOM,
CHAVAKKAD TALUK, THRISSUR DISTRICT- 680 004.
* ADDITIONAL R2 IMPLEADED
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA - 682 031.
* ADDITIONAL R2 IMPLEADED AS PER ORDER DTD.23.5.2017
IN IA.852/2017.
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD
ON 23-05-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(Crl.).No. 252 of 2017 (Q)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 COPY OF THE JUDGMENT DATED 23.1.2016 IN CC NO 224/2014
ON THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT,
CHAVAKKAD
RESPONDENT(S)' EXHIBITS:
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NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
ALEXANDER THOMAS, J.
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O.P(Crl).No.252 Of 2017
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Dated this the 23rd day of May, 2017.
J U D G M E N T
The petitioner is the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act, in C.C.No.224/2014 on the file of the Judicial First Class Magistrate Court, Chavakkad, instituted on the basis of a complaint filed by the 1st respondent herein. The trial court as per the impugned judgment rendered on 23.1.2016 had convicted the petitioner for the above said offence and had sentenced to undergo simple imprisonment till the rising of the court and to pay compensation of Rs.1.5 lakhs to the complainant under Sec.357(3) of the Cr.P.C and in default thereof to undergo simple imprisonment for a further period of three months, etc. The case of the complainant is that the accused had borrowed an amount of Rs.3.5 lakhs from him and in order to discharge that liability the accused had issued the cheque in question. That the complainant had complied with all necessary statutory formalities for initiation of the complaint and thereafter filed the complaint in question. The accused appeared before the court below and the accused was served with a copy of the complaint and he ::2::
O.P(Crl).No.252 Of 2017 pleaded not guilty. Subsequently, a petition was filed by the accused for recording the plea once again and thereafter the accused pleaded guilty. The said application for plea bargaining under Chapter XXIA of the Cr.P.C was considered by the learned Magistrate, who accepted the plea. As per the impugned order, the trial court had found the petitioner guilty of the offence under Sec.138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment till the rising of the court and to pay compensation of Rs.1.5 lakhs to the complainant under Sec.357(3) of the Cr.P.C, etc. It is this order that is under challenge in this petition.
2. Though notice has been duly served on R-1 complainant, there is no appearance for that party. PP has taken notice for R-2 State. So service has been duly completed.
3. Heard Sri.S.Renjith, learned counsel appearing for the petitioner-accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the R-2 State.
4. The learned counsel appearing for the petitioner has mainly placed reliance on the judgments of this Court in Joseph v. State of Kerala [W.P.(C).No.13803/2014] reported in 2015 (4) KLT 364, Joseph P.J v. State of Kerala & anr. [O.P(Crl).No.41/2015] reported in 2015 ::3::
O.P(Crl).No.252 Of 2017 (5) KHC 586 and Bala Dandapani v. State of Kerala [O.P(Crl).
No.253/2014] reported in 2016 (1) KLT 117, and would contend that in the instant case the conviction was rendered against the petitioner on the basis of the provisions contained in Chapter XXIA of the Cr.P.C relating to plea bargaining and the same has been done without complying the mandatory provisions contained in Sec.265B of the Cr.P.C in the matter of in camera examination of the accused without the presence of the complainant. The petitioner would also place reliance on the judgments in Thippaswamy v. State of Karnataka reported in (1983) 1 SCC 194, Abdul Jaleel v. Station House Officer, Kozhikode & anr. reported in 2014 (2) KLD 161, Brijlal Amarbanshi & ors. v. State of Maharashtra reported in 2009 Crl.L.J 87 and the judgment of this Court in State v. Gopinatha Pillai reported in 1978 KLT 779. However, Sri.S.Renjith, learned counsel appearing for the petitioner on instructions from his party submits that the petitioner would confine his prayer for a direction from this Court to grant atleast 10 months' time to pay off the compensation amount of Rs.1.5 lakhs to the complainant in terms of impugned Ext.P-1 order and that the petitioner requires sufficient time in that regard as he is only an autorikshaw driver by avocation. Having regard to the facts and ::4::
O.P(Crl).No.252 Of 2017 circumstances of the case and taking into consideration the fact that the petitioner is an autorikshaw driver by avocation, this Court is inclined to grant time in that regard. Accordingly, the following orders and directions are issued:
(i) The conviction and sentence as well as the direction to pay the compensation as ordered in Ext.P-1 order will stand confirmed.
(ii) The petitioner is given 10 months time from 1.6.2017 to pay the compensation amount of Rs.1.5 lakhs directly to the complainant.
(iii) As far as possible, the petitioner will pay the said amount in various instalments to the complainant and upon such payments, the complainant will issue receipts to the accused in order to enable the accused to produce it before the court below evidencing such payments.
(iv) The petitioner will personally appear before the court below at 11:00 a.m. on 2.4.2018 to receive simple imprisonment till the rising of the court and to satisfy the trial court about payment of compensation amount of Rs.1.5 lakhs.
(v) Needless to say, on default of the petitioner to pay the compensation amount as directed above, he will have to suffer simple imprisonment for a period of 3 months.
(vi) Until 2.4.2018, all coercive steps pending against the petitioner in execution of the impugned sentence will stand deferred.
(vii) On default of the petitioner either to appear on 2.4.2018 or to make payment of compensation as directed above, the trial court will be at liberty to proceed against the petitioner in accordance with law.
With these observations and directions, the Original Petition (Crl.) stands finally disposed of.
ALEXANDER THOMAS, Judge.
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