H. Abbas v. N. Nagaraju and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 4TH DAY OF AUGUST 2014/13TH SRAVANA, 1936** ## **Crl.MC.No. 987 of 2014 ()** **-------------------------Crl.Rev.Pet 2735/2010 of THIS HON'BLE COURT ---------** ## **PETITIONER :** ## **------------------** **H. ABBAS, S/O.HUSSAIN, NEW NABEESA MANZIL, THACHANKAD.P.O. ALATHUR, PALAKKAD.** ## **BY ADV. SRI.RAJESH SIVARAMANKUTTY** **RESPONDENTS :** **1. N. NAGARAJU, S/O.P.NARAYANAN, PNC NIVAS, CHAKKANTHARA PALAKKAD-678 006.** ## **2. STATE OF KERALA** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SMT.K.ANILA R2 BY PUBLIC PROSECUTOR SMT. P. MAYA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 987 of 2014 ()** ## **--------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **ANNEXURE A- TRUE COPY OF THE JUDGMENT DATED 20.09.10 PASSED IN CRL.R.P.NO.2735/10 ON THE FILE OF THIS HON'BLE COURT.** **ANNEXURE B- TRUE COPY OF THE RECEIPT/ACKNOWLEDGMENT DATED 07.12.13.** **RESPONDENT(S)' EXHIBITS** **:** **NIL.** **//TRUE COPY//** ## **P.A. TO JUDGE** **BP** ## **K. RAMAKRISHNAN, J. -----------------------------------Crl.M.C No.987 of 2014** ## **---------------------------------------------------** Dated this the 04[th] day of August, 2014 ## **O R D E R** This is an application filed by the petitioner, who is the accused in S.T No. 2407/2005 on the file of the Judicial First Class Magistrate Court-III, Palakkad to issue direction to the learned Magistrate to receive the balance fine and record satisfaction of the compensation paid to the complainant directly under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. It is alleged in the petition that the petitioner has been arrayed as accused in S.T No.2407/05 on the file of Judicial First Class Magistrate Court-III, Palakkad which was taken on file on the basis of private complaint filed by the first respondent alleging offences under Section 138 of the Negotiable Instrument Act. After trial, the petitioner was found guilty and convicted thereunder and sentenced to pay a fine of Rs.46,000/- in default to undergo simple imprisonment for one month. It is further ordered that fine amount is realised and the same be **Crl.M.C No.987 of 2014** **2** paid to the complainant as compensation under Section 357(1) of the Code. The petitioner filed Crl.A.No. 22/2009 and that was dismissed by the learned I Additional Sessions Judge, Palakkad. Aggrieved by the same he preferred Crl.R.P.2735/10 before this Court and this Court by Annexure-A order disposed of the revision enhancing the fine to Rs.50,000/- and granting time till 20.12.2010 and to pay Rs.48,000/- to the complainant as compensation out of the fine amount and remit the balance amount before the court below within that time in default to undergo simple imprisonment for two months. He could not pay the amount within time. But now he had paid compensation to the complainant directly and he is prepared to deposit the balance fine of Rs.2,000/- before the court below. Since, the time granted by this Court has expired, the court below will not accept the amount. So, the petitioner has no other remedy to approach this Court seeking the following reliefs: “to direct the Judicial First Class Magistrate Court-III, Palakkad to consider the payment made by the petitioner directly to the first respondent as seen in Annexure-B, as due **Crl.M.C No.987 of 2014** **3** compliance of the directions in Annexure-A judgment of this Honourable Court and allow the petitioner to deposit the balance of Rs.2,000/- with the said court within a time limit as fixed by this Honourable Court.” 3. Heard the counsel for the petitioner and first respondent and learned Public Prosecutor. 4. The counsel for the petitioner submitted that though he could not pay the amount within the stipulated time, he had now paid the amount to the first respondent and he is prepared to acknowledge the same before the court below. But unless a direction is given to the court below, the court below will not accept the same. He had relied on the decision reported in **Beena v. Balakrishnan Nair and another, 2010(2) KLT 1017** in support of his case. 5. The first respondent appeared through counsel and submitted that his client has received the amount and his client will go to the court below and file proper acknowledgment of the receipt of the amount as well on the day on which he is directed to appear by this Court. **Crl.M.C No.987 of 2014** **4** 6. The application was opposed by the the Public Prosecutor as the time granted has already been over. 7. It is an admitted fact that on the basis of a private complaint filed by the first respondent, case was taken on file as ST.No. 2407/05 on the file of the Judicial First Class Magistrate Court-III, Palakkad alleging offences under Section 138 of Negotiable Instrument Act. It was also an admitted fact that after trial, the petitioner was convicted and sentenced to pay a fine of Rs.46,000/- in default to undergo simple imprisonment for two months and further directed that if fine amount is released, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Though the petitioner filed Crl.A.No.22/2009 as against the order of conviction and sentence, it was dismissed by I Additional Sessions Judge, Palakkad. The petitioner filed Crl.R.P.No.2735/10 before this Court and this Court by Annexure-A order confirmed the order of conviction but modified the fine to Rs.50,000/- and allowed to pay Rs.48,000/- as compensation out of the fine amount to the complainant and directed the petitioner to deposit the **Crl.M.C No.987 of 2014** **5** balance fine amount before the court below on or before 20.12.2010. Admittedly, the petitioner has not paid the amount within the time granted by this Court. 8. Now, the amount directed to the paid out of fine as compensation to the complainant has been directly paid by the petitioner and this was acknowledged by the counsel for the first respondent as well before this Court. It is also mentioned in the petition that the petitioner is prepared to remit the balance amount before the court below. His apprehension is that if there is no direction given by this Court, that will not be accepted by the court below. In the decision reported in **Beena v. Balakrishnan Nair and another, 2010(2) KLT 1017** , this Court has held that if fine is imposed as sentence and out of the fine if a portion of the amount is directed to be paid as compensation and if the accused had directly paid the amount and the complainant is prepared to acknowledge the same, then court below need only record that payment as substantial compliance in the fine register and receive the balance amount ordered to be paid as fine by the court and close the same. The **Crl.M.C No.987 of 2014** **6** question as to whether the power under Section 482 of the Code can be invoked for such purpose was considered by this Court in **Sivankutty v. State of Kerala, 2012(2) 21** and this Court has held that if in the order, it was directed out of the fine certain amount has to be paid to the complainant directly as compensation, then if that payment is convinced by making acknowledgment by the complainant appearing before the lower court, then that can be recorded in the fine register and it can be treated as recovered. So, if in view of the above dictums, if the petitioner surrenders before the court below and pays of Rs.2,000/-being the balance fine amount payable by him after paying the compensation awarded by this Court out of the fine amount and if the complainant also appears before the court below and acknowledge the same by filing a proper receipt before that court, then the court below is directed to receive the same and record those payments in the fine register and pass appropriate orders in accordance with law as mentioned in the above decisions. So the petition can be disposed of as follows: **Crl.M.C No.987 of 2014** **7** The petitioner as well as the first respondent are directed to appear before the court below on 21.08.2014 and if the complainant, who is the first respondent herein files a proper acknowledgment of receipt of the compensation directed to be paid out of the fine amount as per Annexure-A order and the learned Magistrate is convinced of the same, then the Magistrate is directed to record that payment and also receive the balance amount directed to be paid by the complainant as fine and make necessary endorsement in the fine register and dispose of the case in accordance with law as directed by this Court in the decisions cited supra. With the above direction of observations the petition is disposed of. Hand over a copy of the order to the counsel for the respondent and also the first respondent and communicate the same to the court below immediately. Sd/-K. RAMAKRISHNAN, Judge lsn