Balachandran Pillai v. State of Kerala and C. Kochunny

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939** **Crl.MC.No. 5567 of 2017 () --------------------------CRA.703/2005 of II ADDL. SESSION COURT,KOLLAM CC.961/2002 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTARAKKARA** **PETITIONER(S): -------------** **BALACHANDRAN PILLAI S/O NARAYANA PILLAI, CHANDRA VILASOM, KAREEPRA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.** **BY ADV. SRI.LAVARAJ M.G.** **RESPONDENT(S):** **--------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. C. KOCHUNNY, PUTHENVILA VEEDU, NEELESWARAM MURI, KOTTARAKKARA-691506.** **R1 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW R2 BY ADV. SRI.M.V.LALU MATHEWS** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** **Crl.MC.No. 5567 of 2017 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURE** **----------------------ANNEXURE A1- ORIGINAL RECEIPT DATED 30/09/2011 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF THE PETITIONER.** **RESPONDENT(S)' ANNEXURE** **-----------------------** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ALEXANDER THOMAS, J. -------------------------Crl.M.C.No. 5567 of 2017 ------------------------------Dated this the 10[th] day of August, 2017 ## ORDER The petitioner is the accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C. No.961/2002 on the file of the Judicial First Class Magistrate Court-I, Kottarakkara, instituted on the basis of a complaint filed by the 2[nd] respondent herein. The dishonored cheque in the instant case is for Rs.50,000/-. The trial court as per the judgment rendered in C.C.No.961/2002 convicting the petitioner for the aforesaid offence and sentenced him to undergo four months simple imprisonment and to pay a fine of Rs.50,000/- and in default thereof to undergo 4 months simple imprisonment and that the fine amount so realized should be disbursed as compensation to the complainant in terms of Section 357(1) (b) of the Code of Criminal Procedure. The conviction imposed by the trial court has been confirmed in the appellate judgment in Crl.Appeal No.703/2005 on the file of the Cout of II Additional Sessions Judge, Kollam. However Crl.M.C.No. 5567 of 2017 2 the court has deleted the substantive sentence and imposed fine of Rs.50,000/- with the default sentence of 3 months simple imprisonment. Aggrieved thereby the petitioner had preferred an unnumbered Crl.R.P before this Court in the year 2011 along with a delay condonation application in Crl.M.A.No.43/2011. It is stated by the petitioner that order dated 20.09.2011 was passed by this Court in Crl.M.A.No.7882/2011 in the said unnumbered Crl.R.P. directing that the execution of the sentence be kept in abeyance for 10 days and that petitioner should deposit the entire fine amount of Rs.50,000/- before the trial court within that time limit. It is stated that instead of depositing the amount before the trial court, the petitioner had directly paid the said amount of Rs.50,000/- to the complainant. Later this Court had dismissed Crl.M.A.No.43/2011 and the unnumbered Crl.R.P due to non appearance of the petitioner. It is stated that now it is learned that the trial court has issued non bailable warrant in execution of the impugned sentence in this case as the payment was not Crl.M.C.No. 5567 of 2017 3 ## remitted before the trial court. The prayer in this Crl.M.C. is as follows: For these and other grounds to be urged at the time of hearing, it is most humbly prayed that this Hon'ble court may be pleased to fix a future date of enabling the petitioner to appear before the Court below and direct the Judicial First Class Magistrate Court-I, Kottarakkara, to recall the warrant issued against the petitioner, in the interest of justice. 2. Heard Sri.M.G.Lavaraj, learned counsel appearing for the petitioner/accused, Sri.M.V.Lalu Mathews, learned counsel has taken notice for R2/complainant and Sri.Jestin Mathew, learned Public Prosecutor has taken notice for R1/State. Service complete. 3. It is stated by Sri.M.V.Lalu Mathew, learned counsel for R2/complainant on the basis of instructions from his party that the 2[nd] respondent complainant has already received the total fine/compensation amount of Rs.50,000/- directly from the petitioner/accused on 30.09.2011, in relation to the matters covered by the Crl.M.C.No. 5567 of 2017 4 judgment in C.C.No.961/2002 on the file of the Judicial First Class Magistrate Court-I, Kottarakkara and that AnnexureA1 is the original of the said receipt dated 30.09.2011 in which he is the signatory. The said submission of the 2[nd] respondent/complainant is recorded. The Division Bench of this Court in the case in Sivankutty v. John Thomas [2012 (4) KLT 21] has held that in cases where compensation is payable out of the fine amount in terms of Section 357(1)(b) of Cr.P.C and there is a direction to pay whole of the fine so realised as compensation to the complainant or to the party, as and when fine is deposited in court and entries are made in the register and the fine is credited to the sub treasury, it is to be paid to the complainant as compensation as and when he applies to the same. But that if the court permits payment of fine as compensation to the complainant directly, it enables the accused to pay the entire fine as compensation directly to the complainant. In such cases, the Magistrate cannot insist that fine is to be paid in court and it cannot be paid directly to the complainant and it is to Crl.M.C.No. 5567 of 2017 5 be paid to the complainant only after making necessary entries in Form No.20. In such a case if the statement is filed by the complainant regarding satisfaction of the compensation, then the Magistrate has to make necessary entries in Form No.20, based on the statement as in the case of compensation payable under Section 357(3) of Cr.P.C. It is profitable to refer paragraph 10 of the above said decision of the Division Bench in Sivankutty's case (Supra) [see KLT report] :- 10. The compensation is payable either under S.357(1) or 357(3) of Code of Criminal Procedure. If compensation forms part of the fine, it could only be under S.357(1) of Code of Criminal Procedure. If compensation is awarded separately and does not form part or whole of the fine, it could only be under S.357(3) of Code of Criminal Procedure. If compensation forms part of the fine, either whole or part, as the sentence is fine procedure for its payment provided under R.192 of Criminal Rules of Practice and the fine is to be paid in court and when payment is made it shall be entered in the Register and the fine shall be credited to the Sub Treasury as provided under R. 195. If any part of the fine is to be paid, either in whole or in part as compensation it shall be as provided under R.203 and shall be entered in the register of fine imposed and refunded in Form No.20 as provided earlier. Crl.M.C.No. 5567 of 2017 6 On the other hand, if compensation is payable underS.357 (3) of Code of Criminal Procedure and court directs either to deposit in court or permits the appellant to pay it directly to the complainant, question of depositing the compensation amount in court under R.203 will not arise. In such a case, if a memo is filed to record the payment of compensation, it could only be entered in the register of fine imposed, levied or refunded with reference to the memo submitted, with the necessary details in the remarks column with the initial of the Judge or the Magistrate concerned. Similarly, if compensation is payable under S.357(1) of Code of Criminal Procedure and there is a direction to pay whole of the fine realised, as compensation lo the complainant or to the party, as and when fine is deposited in court and entries are made in the register and fine is credited to Sub Treasury, it is to be paid to the complainant as compensation as and when he applies for the same. But if the Court permits payment of fine as compensation to the complainant directly, it enables the accused to pay the entire fine as compensation directly to the complainant, as is the case with the sentence in C.C.785/2003, the Magistrale cannot insist that fine is to be paid in Court and it cannot be paid directly to the complainant and is to be paid to the complainant only after making necessary entries in Form No.20. In such a case when the statement is filed by the complainant regarding satisfaction of the compensation, the Magistrate has to make necessary entry in Form No.20, based on that statement, as in the case of compensation payable under S.357(3) of Code of Criminal Crl.M.C.No. 5567 of 2017 7 Procedure. When the compensation directed to be paid to the complainant is not the whole fine but only part of fine, necessarily the entire fine is to be deposited before the Court. Even in such a case, if court, which sentenced him specifically permits to pay that part of the fine which is to be paid as compensation, directly to the complainant, Magistrate is competent to receive the balance of fine deducting the compensation so payable and make necessary entries in Form No. 20. In that case based on the statement filed by the complainant acknowledging receipt of the compensation, necessary entries of the payment of compensation and receipt are to be recorded as in the case of deposit of fine and payment of compensation under S.357(1)(b) of Code of Criminal Procedure. We also find that there is no general direction in Beena's case (supra) and the direction to the Magistrate was on the peculiar facts and circumstance of that case. Having satisfied that compensation was paid to the complainant, the learned Single Judge directed the Magistrate to make necessary entries in the fine register. We do not find any error or defect in the directions given in the decision. The references are answered accordingly. Send back the files to the learned Single Judge to pass appropriate orders in the petition. 4. This Court has also held in Beena v. Balakrishnan Nair [2010 (2) KLT 1017], paragraph 5 thereof that in cases where the petitioner/accused has paid the amount directly to the respondent/complainant to their satisfaction, what is Crl.M.C.No. 5567 of 2017 8 required is only to be necessary entries in the fine register, that the amount of fine has been realised and paid to respondent/complainant and accordingly this Court had directed the trial court that if respondent/complainant files a statement in the trial court concerned through his counsel in that court acknowledging receipt of the amount of fine ordered to be paid, then the learned Magistrate will accept that as sufficient compliance of the directions to pay the fine which is disbursable as compensation in terms of Section 357(1)(3) of Cr.P.C. and should make necessary entries in the fine register as if fine has been realised and paid to the complainant and close the matter accordingly. This Court had also given liberty to the parties in that case to follow the above said procedure and warrant of arrest issued against the petitioner therein was directed to be kept in abeyance in the meanwhile in order to enable the parties to complete the necessary formalities before the trial court. 6. Sri.M.V. Lalu Mathews, learned counsel for the 2[nd] respondent complainant submits on the basis of Crl.M.C.No. 5567 of 2017 9 instructions from the party that the 2[nd] respondent complainant will file necessary memo/statement before the trial court which dealt with C.C.No.961/2002, stating that he has already received the full fine/compensation amount of Rs.50,000/-, on 30.09.2011 and that the complainant has no further grievances against the petitioner/accused and that the said memo/statement will be filed on any day on or before 16.9.2017. Both parties are permitted to appear before the trial court concerned through their respective advocates on any day on or before 16.9.2017 and on the 2[nd] respondent/complainant filing a memo/statement through his counsel stating that the complainant has already received the above said amount of Rs.50,000/- directly to the complainant, the same should be treated by learned Magistrate as full compliance made by the petitioner to make payment of the aforesaid amount. in such case the learned Magistrate will treat that the said amount has been paid as fine and then disbursed as compensation to the complainant in terms of Section 357(1) Crl.M.C.No. 5567 of 2017 10 (b) of Cr.P.C., and necessary entries shall be made by the learned Magistrate in the fine register as directed in the aforecited judgments. Until 16.9.2017, all coercive steps issued against the petitioner including non bailable warrant in relation to the execution of the impugned sentence of fine in this case shall stand deferred. 7. Learned Public Prosecutor will inform the competent police authorities concerned about this directions issued by this Court. With these observations and directions this Crl.M.C. will stands finally disposed of. sd/ALEXANDER THOMAS, JUDGE AMV/14/08/2017