Jyothish Kumar @ Kochumon v. State of Kerala & O. Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 5TH DAY OF JUNE 2014/15TH JYAISHTA, 1936** ## **Crl.MC.No. 2170 of 2014 ()** **--------------------------CC 218/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT, RAMANKARI ---------** ## **PETITIONER/ACCUSED:** **----------------------------------** **JYOTHISH KUMAR @ KOCHUMON, AGED 39 YEARS, S/O.GOPINATHAN NAIR, ARACKAL HOUSE, THEKKEKKARA P.O., MANCOMBU, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA** ## **RESPONDENTS/STATE & COMPLAINANT:** **-----------------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 682 031** ## **2. O. JOSEPH** **ALAPPATTU HOUSE, THEKKEKKARA P.O., MONCOMBU, ALAPPUZHA DISTRICT - 690 107** **R1 BY PUBLIC PROSECUTOR SMT. S. HYMA R2 BY ADV. SRI.P.SHAMMI NAVAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **BP** **Crl.MC.No. 2170 of 2014 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNX.A1: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN CRIMINAL REVISION PETITION NO.2180 OF 2010 DATED 28-7-2010** **RESPONDENT(S)' EXHIBITS : NIL. ---------------------------------------** ## **//TRUE COPY//** **P.S. TO JUDGE** ## **BP** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.2170 of 2014 .................................................. Dated this the 5[th] day of June, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioner seeking certain directions under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the second respondent filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') and it was taken on file as C.C.No.218/2006 on the file of the Judicial First Class Magistrate Court, Ramankary. After trial, the learned Magistrate convicted and sentenced him. Though he filed an appeal, that was also ended in dismissal. Against the same, he filed Crl.R.P.No.2180/2010 before this Court and this Court by Annexure A1 order confirmed the order of conviction, but reduced the substantive sentence to imprisonment till the rising of court and also directed the petitioner to pay a compensation of Rs.1,10,000/- to the complainant, in default to undergo simple imprisonment for three months under Section 357(3) of the Code and directed to pay the amount within three Crl.M.C.No.2170 of 2014 2 months and also directed the petitioner to surrender before the court below to receive the sentence on 28.10.2010. But he could not pay the amount within time and comply with the condition as well. 3. Now the amount has been paid. Without getting some direction from court, the lower court will not allow him to serve the sentence. So, the petitioner has no other remedy except to approach this Court seeking the following relief: For these and other grounds that may be urged at the time of hearing this Honourable Court may be pleased to issue a dirction to the Judicial First Class Magistrate, Ramankary to release the petitioner on his serving substantive imprisonment till the rising of Court as per the judgment in Crl.R.P.No.2180 of 2010 on a day to be fixed by this Honourable Court, without sending him to suffer default sentence for non-payment of compensation, if payment of compensation is evidenced. 4. The learned counsel for the petitioner submitted that unless some direction is given, the lower court will not allow him to undergo the sentence and accept the payment made to 3 Crl.M.C.No.2170 of 2014 3 the complainant directly as it was done after time. 5. The second respondent appeared through counsel and submitted that the compensation ordered to be paid has been received. 6. The public Prosecutor submitted that it is a belated application. 7. It is an admitted fact that the second respondent filed a private complaint against the petitioner alleging offence under Section 138 of the Act and it was taken on file as C.C.No.218/2006 on the file of the Judicial First Class Magistrate Court, Ramankary and the petitioner was convicted and sentenced by the trial court and that was confirmed by the appellate court as per order in Crl.A.No.280/2008 of Additional Sessions Court ( Adhoc-II), Alappuzha. It is also an admitted fact that the petitioner filed Crl.R.P.No.2180/2010 before this Court and this Court by Annexure-A1 order dated 28.7.2010 allowed the revision in part by confirming the order of conviction but modified the substantive sentence to imprisonment till the rising of court and also to pay compenstion of Rs.1,10,000/- to the complainant, in default to undergo simple imprisonment for three months. Three months 4 Crl.M.C.No.2170 of 2014 time was granted to pay the amount and directed the petitioner to appear before the court below on 28.10.2010 to receive the sentence and pay compensation. But, admittedly, he could not comply with the direction. Now the payment has been effected and that was admitted by the counsel for the second respondent. 8. In the decision reported in **Beena v. Balakrishnan Nair** (2010 (2) KLT 1017), this Court has held that even if fine was imposed and compensation was ordered to be paid out of fine and it was partly paid even after the time fixed, then both the parties appear before the court and appraise the court regarding the payment, then the trial court can enter the same in the fine register and make necessary endorsements in the fine register recording the same. The same question was considered by the Division Bench of this Court in **Sivankutty v. John Thomas** (2012 (4) KLT 21), in which it has been held that if compensation amount was paid directly to the complainant, then deposit of the amount again in court does not arise and if the lower court is satisfied about the payment, then that can be recorded as substantive compliance. So considering the circumstances this Court feels that this 5 Crl.M.C.No.2170 of 2014 petition can be disposed of as follows: If the petitioner and the second respondent appear before the court below on 13.6.2014 and the second respondent files receipt before the court below through his counsel acknowledging the payment of compensation, then the learned Magistrate is directed to accept the same as sufficient compliance and permit the petitioner to serve sentence of imprisonment till the rising of court as directed in Annexure A1 order in accordance with the decisions reported in **Beena's and Sivankutty's cases** (cited supra). With the above directions and observations, this petition is disposed of. Office is directed to communicate this order to the concerned court immediately and also handover a copy of the order to the counsel for the petitioner also to enable him to produce the same before the court below to comply with the directions of this Court. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.2170 of 2014 6