A.K. Velayudhan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** ## **MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933** **Crl.MC.No. 3006 of 2011(A) -------------------------------------[MP.NO.694/2011 IN CC.NO.1280/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, PERUMBAVOOR]** **....................** ## **A.K.VELAYUDHAN, S/O.KUNJAYYAPPAN, ALAPPATTU VEEDU, KOLLAKODE, MUNDAPURAM KARA, AYYAMPUZHA VILLAGE, AYYAMPUZHA P.O,** ## **BY ADVS. SRI.P.A.CHANDRAN, SRI.ANANDAN PILLAI.** ## **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA** **2. M.V.GEORGE, S/O.VARKEY, MANGALY HOUSE MANJAPRA VILLAGE, VADAKKUMBHAGOM KARA, MANJAPRA P.O, 683 581.** ## **3. DISTRICT COLLECTOR, ERNAKULAM- 682 030.** **R1 & R3 BY PUBLIC PROSECUTOR SRI. B. JAYA SURYA, R2 BY ADV. SRI.ALEX.M.SCARIA.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.M.C.NO.3006/2011-A:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** |**ANNEXURE**|**1-**|**TRUE COPY OF THE JUDGMENT IN CC.1280/2005 DT.17.08.06**| |---|---|---| |||**OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I,**| |||**PERUMBAVOOR.**| |**ANNEXURE**|**2-**|**TRUE COPY OF THE ORDER RELEASING THE PETITIONER/**| |||**CONVICT FROM THE CENTRAL JAIL, VIYYOOR,THRISSUR.**| |**ANNEXURE**|**3-**|**TRUE COPY OF THE ORDER IN M.P.694/2011 IN**| |||**CC.1280/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE**| |||**COURT-I,PERUMBAVOOR.**| |**ANNEXURE**|**4-**|**TRUE COPY OF THE RR PROCEEEDINGS NO.B5-2011/5296/7/**| |||**DT.27.1.11 PC. EKM WITH ENGLISH TRANSLATION.**| |**ANNEXURE**|**5-**|**TRUE COPY OF THE DISTRESS WARRANT NO.B5-2011/5296/7/K**| |||**27.1.11 DC. EKM WITH ENGLISH TRANSLATION.**| |**ANNEXURE**|**6-**|**TRUE COPY OF THE NOTICE DT.29.8.2011 ISSUED TO**| |||**RESPONDENT.**| ## **RESPONDENT'S ANNEXURES:NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **Prv.** ## **N.K. BALAKRISHNAN, J -----------------------------------Crl.M.C. No. 3006 of 2011 -----------------------------------------Dated this the 10[th] day of October, 2011.** ## **O R D E R** Petitioner is the accused in CC.1280/2005 of JFCM - I, Perumbavoor. He was convicted of the offence punishable under Section 138 of N.I. Act and was sentenced to undergo Simple Imprisonment for three months and to pay Rs.96,000/- as compensation to the complainant under Section 357(3) Cr.P.C. If the said amount was not paid, he was directed to undergo Simple Imprisonment for 45 days more. It is not disputed that the petitioner/accused underwent the sentence of imprisonment for three months. It is also not disputed that since he failed to pay Rs.96,000/being the compensation payable under Section 357(3) he has undergone S.I. For 45 days, being the default sentence also. 2. The learned counsel for the petitioner would submit that the learned Magistrate is not empowered to award the compensation as per Sections 29 and 30 of the Cr.P.C. It is ## **Crl.M.C. No. 3006 of 2011 2** also argued that as the N.I. Act is a special statute as there is no special provision, the Magistrate is not justified in awarding compensation and if that be so the Magistrate is not empowered to realise any amount as compensation. It is further argued that Section 357(1) and 357(3) do not deal with a non-cognizable case instituted on a private complaint. According to the learned counsel Section 359 would be applicable. But here no direction was issued under Section 359 Cr.P.C and as such the learned Magistrate is not empowered to realize the said amount by resorting the provisions contained in 421 or 431 Cr.P.C., argues the learned counsel for the petitioner. 3. The aforesaid argument addressed by the learned counsel for the accused is resisted by the learned counsel for complainant pointing out that the judgment of conviction and sentence was not challenged at all. That has attained ## **Crl.M.C. No. 3006 of 2011 3** finality. It is also submitted by the learned counsel that the order as per which the distress warrant was issued is also not under challenge and as such the accused cannot now challenge the proceedings initiated by that Court under Section 421 Cr.P.C. 4. The contention that the Magistrate is not empowered to award compensation either under Section 357(1) or 357(3) in a case instituted on a private complaint alleging offences under Section 138 of the N.I. Act cannot be countenanced in view of the fact that Section 357 does not distinguish an offence instituted on a private complaint or on a police report, nor does it say that it should be a cognizable offence or a grave offence. This Section only deals with the power of the court to award compensation from out of the fine amount if it is ordered under Section 357(1) or compensation under 357 (3) Cr.P.C. when the fine ## **Crl.M.C. No. 3006 of 2011 4** does not form part of the sentence. That in case of default of payment of compensation the accused can be sentenced to imprisonment is the dictum laid down by the Hon'ble **–** Supreme Court in **Sukhbir Singh case (1988) 4 SCC – – 551, Vijayan v. Sadanandan (2009)6 SCC 652 and – K.A. Abbas HSA. v. Sabu Joseph and another (2010) – 6 SCC 230** . 5. The main argument that has been advanced by the learned counsel for the petitioner is that since the petitioner has already undergone the default sentence of 45 days and since the petitioner was not told that he would be liable to pay compensation even in spite of his undergoing default sentence it would actually amount to double jeopardy. His case is that he had no money to pay the compensation as directed by the learned Magistrate and that was why, he chose to undergo the default sentence. When that is the ## **Crl.M.C. No. 3006 of 2011 5** position, it would be too unjust to recover the very same compensation amount by resorting to revenue recovery proceeding pursuant to the order passed by the learned Magistrate under Section 421 Cr.P.C., it is argued. 6. Here the amount determined as compensation payable to the complainant is in the opinion of the court, recoverable by the complainant in a civil court. As such the order for compensation squarely falls under 357 (1) (b) of the Act, is the other argument advanced by the learned counsel for the complainant. Section 357(3) provides that when the court imposes the sentence of which fine does not form a part, the court may order the accused to pay compensation to the complainant. That amount is recoverable by resorting to the provision contained in Section 431 and 421 of Cr.P.C. Hence the contention to the contrary advanced by the accused cannot be sustained. ## **Crl.M.C. No. 3006 of 2011 6** Since there is a specific order for payment of compensation to the complainant, the Proviso to Section 421(1) squarely applies to this case. In other words, the fact that the accused has undergone default sentence will not wipe-out the liability altogether. The amount can still be recovered by recourse to Section 421 Cr.P.C. The challenge against the impugned order is unsustainable. This petition is hence dismissed. ## **N.K. BALAKRISHNAN, JUDGE** smvd