Divyanatha Shetty v. The State of Kerala and Ganesh Prasad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 10TH DAY OF MARCH 2014/19TH PHALGUNA, 1935** ## **Crl.MC.No. 1519 of 2014** **-----------------------------------** ## **C.C.NO. 1116/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, HOSDRUG ----------------** **PETITIONER/ACCUSED:** **-----------------------------------** **DIVYANATHA SHETTY, AGED 44 YEARS, S/O.ANTHAPPA SHETTY, RESIDING AT KAVU HOUSE, KAVU VILLAGE, PUTHUR TALUK, D.K.DISTRICT, KARNATAKA STATE.** **BY ADV. SRI.T.MADHU** ## **RESPONDENTS/STATE & COMPLAINANT:** **------------------------------------------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **2. GANESH PRASAD, AGED 37 YEARS,** **S/O.RATNAKARAN, RESIDING AT SREEDEVI NILAYAM, KANHANGAD P.O., KANNHANGAD, HOSDURG TALUK, KASARAGOD DISTRICT 671 315.** **R1 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE.P R2 BY ADV. SMT.BINDUMOL JOSEPH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **Crl.MC.No. 1519 of 2014 -----------------------------------** ## **APPENDIX** **---------------** **PETITIONER(S)' ANNEXURES ------------------------------------------** **ANNEXURE-A1: THE TRUE COPY OF THE ORDER DATED 07.06.2011 IN CRL.R.P. NO.1411/2011 ON THE FILE OF THIS HON'BLE COURT. ANNEXURE-A2: THE AFFIDAVIT DATED 06.01.2014 SWORN IN BY THE 2ND RESPONDENT.** **RESPONDENT(S)' ANNEXURES:** **---------------------------------------------** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. K.RAMAKRISHNAN, J. ----------------------Crl.M.C 1519 of 2014 -------------------------Dated this the 10[th] day of March, 2014 ## O R D E R This is an application filed by the petitioner to issue a direction to the Magistrate to record the payment in the fine register, as fine ordered to be paid as compensation has been directly paid to the complainant by the accused to permit the petitioner to pay the balance fine and allow the petitioner to suffer substantive sentence under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner is the accused in CC 1116/2005 on the file of the Judicial First Class Magistrate Court I, Hosdurg, which was filed by the 2[nd] respondent as a private complaint under Section 138 of the Negotiable Instrument Act (hereinafter called 'the act') alleging offence under Section 138 of the Act. After trial, the learned Magistrate found the petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for six months and also to pay a compensation of Rs.80,000/- to the 2[nd] respondent, in default to undergo simple imprisonment for two months under Section 357 of the Code of Criminal Procedure. Crl.M.C 1519 of 2014 2 3. Aggrieved by the same, the petitioner preferred appeal before the Sessions Court Kasargod as Criminal Appeal No. 399/2007 and that was partly allowed by the Additional Sessions court, (Adhoc II) Kasargod by judgment dated 27.08.2009 confirming the order of conviction and modifying the substantive sentence to imprisonment for one week instead of six months and further directed to pay a fine of Rs.80,000 in default to undergo simple imprisonment for two months. The entire fine amount was ordered to be given as compensation to the 2[nd] respondent under Section 357 (1) of the Code of criminal Procedure. The petitioner preferred revision before this court as CrRP. 1411/2011 and this Court by Annexure A1 order dated 07.06.2011 confirmed the order of conviction passed by the court below under Section 138 of the act, but modified the sentence to imprisonment till rising of court and also pay a fine of Rs.1,02,000/- and in default to undergo simple imprisonment for three months and further directed that out of the fine amount Rupees one lakh has to be paid as compensation to the 2[nd] respondent within two months. The amount could not be paid within the time, but later he had paid the compensation amount to the second respondent directly, and he is prepared to pay the balance fine amount of Crl.M.C 1519 of 2014 3 Rs.2,000/- before the trial court and also to undergo the imprisonment till rising of court. But since the amount was paid beyond time, he apprehends that he will be remanded by the court, so he has no other options, but to approach this court seeking the following reliefs: _“Direct the Learned Judicial First Class Magistrate's CourtI, Hosdurg to reckon the payment of compensation paid directly by the petitioner/accused in C.C.No.1116/2005 on its file as is evident from Ann A2 affidavit as sufficient execution of the sentence of payment of compensation imposed by this Honourable Court in Crl.R.P.No. 1411/2011 on the file of this Honourable Court and allow the petitioner to suffer the substantive term of imprisonment till rising of court imposed by this Honourable Court by annexure -A order by allowing the petitioner to remit the balance amount of fine of Rs.2,000/- before the court below, so as to secure the ends of justice.”_ 4. Even at the time of admission itself, the second respondent appeared through counsel and filed affidavit stating that the complainant had received the amount of Rupees one lakh ordered by this Court as compensation. So this Court felt that the application can be disposed of at the admission stage itself after hearing the counsel for the petitioner, the second respondent and the learned Public Prosecutor. Crl.M.C 1519 of 2014 4 5. The counsel for the petitioner relies on the decision reported in _**Beena v. Balakrishnan Nair [2010 (2) KLT 1017]**_ and also _**Sivan Kutty v. John Thomas and another [2012 3 KHC 676]**_ in support of his case. 6. It is an admitted fact that the petitioner was convicted and sentenced by the trial court under Section 138 of the Act and the appellate court confirmed the conviction, but modified the sentence and it was further modified by this court as per Annexure A1 judgment, whereby this Court has sentenced the petitioner who is the accused in the case to undergo imprisonment till rising of court and also to pay fine of Rs.1,02,000/- and in default to undergo simple imprisonment of three months. It is further ordered by this court that out of the fine amount, Rupees One lakh was directed to be paid to the complainant as compensation to the complainant under Section 357 (1) (b) of Code of criminal Procedure. This amount was directed to be paid within two months and this order was dated 07.06.2011. It is further mentioned in the order itself, if the petitioner does not comply with the order within the time mentioned, court can proceed against the petitioner by initiating coercive steps to get his presence and to realise the fine amount. Crl.M.C 1519 of 2014 5 7. But the petitioner has not complied with the directions within the time. On the other hand, he had paid part of the fine amount namely Rupees one lakh ordered to be paid as compensation, out of the fine amount to the complainant directly as directed by this court. In the decision reported in _**Beena's Case**_ (supra), the Single Bench of this Court held that, if the accused had paid the fine amount which was termed as fine, out of which the compensation was ordered directly to the complainant, then the Magistrate need only to record the payment in the fine register and record the satisfaction of the payment of fine. That order passed by the learned single judge in a petition filed by the accused in the Criminal Revision Petition itself as an Interlocutory Application. But in another case, when similar prayer was made in a petition under section 482 of Code of Criminal Procedure, the maintainability of that application was doubted by another Single Judge and that was referred to a Division Bench, wherein the Division Bench of this Court has observed in _**Sivan Kutty v John [2012 3 KHC 676]**_ as follows: _“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_ Crl.M.C 1519 of 2014 6 _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. On the other hand, if compensation is payable under S.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 to 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_ Crl.M.C 1519 of 2014 7 _the complainant, as is the case with the sentence in C.C.785/2003, the Magistrate 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 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.”_ Crl.M.C 1519 of 2014 8 8. If the compensation forms part of the fine either whole or in part fine is to be paid in court and then payment is made, it shall be entered in the Register and the fine shall be credited to the sub treasury. But if the Magistrate permits to pay that part of the fine, which is to be paid as compensation directly to the complainant, the Magistrate is competent to receive only the balance of fine. However, in this case, the complainant had admitted that he had received the compensation payable out of fine. So considering these aspects, and also applying the principle laid in _**Sivan Kutty's Case**_ (supra) this Court feels that the petition can be disposed of by directing the learned Magistrate to receive the balance amount of Rs.2,000/- out of the fine amount and permitting the petitioner to receive the sentence of till rising of court on a particular day on which this Court directs the petitioner to appear before that court and also directing the complainant to appear before the court below on that day and produce the receipt regarding the receipt of the amount of one lakh as compensation before that court to record that fact in the Fine Register and close the case after receiving the balance fine of Rs.2000/- and allowing the petitioner to receive the sentence of till rising of Court. So the petition is disposed as follows: Crl.M.C 1519 of 2014 9 The petitioner as well as the complainant are directed to appear before the Judicial First Class Magistrate I, Hosdurg on 24.03.2014 and if the petitioner pays the balance fine amount of Rs.2,000/- and the complainant produces the receipt, for receipt of Rupees One Lakh as compensation as ordered to be paid out of fine amount, before that court, then the learned Magistrate is directed to record those aspects in the fine register as observed by this Court in _**Beena's Case**_ (supra) and _**Sivan Kutty's Case**_ (supra) and permit the petitioner to receive the sentence of till rising of court as directed in Annexure A1 order. With the above direction and observation the petition is disposed of. Communicate this order to the concerned court immediately. K.RAMAKRISHNAN, JUDGE jm/