K. Harshakumar v. The State of Kerala and Sudharma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **TUESDAY, THE 1ST DAY OF APRIL 2014/11TH CHAITHRA, 1936** ## **Crl.MC.No. 5342 of 2013 (E)** **--------------------------------------[C.C. NO.877/2004 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOTTARAKKARA]** **.................** ## **PETITIONER/ACCUSED:** **----------------------------------** **K.HARSHAKUMAR,S/O KUMARAN, AGED 61 YEARS, KUMAR BUILDINGS, EZHUKONE, EZHUKONE POST, KOLLAM DISTRICT.** **BY ADV. SRI.T.MADHU.** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** **------------------------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. SUDHARMA, AGED 53 YEARS,** **D/O. KARTHIYAYANI, RESIDING AT RAMESH BHAVAN, EDAKIDOM MURI, KAREEPRA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT-691 506.** **R1 BY PUBLIC PROSECUTOR SMT. S. HYMA, R2 BY ADV. SMT.BINDUMOL JOSEPH.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **CRL.M.C. NO.5342/2013-E:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE AI: THE TRUE COPY OF THE ORDER DATED 12.9.2007 IN CRL.R.P.NO.2171/2007 ON THE FILE OF THIS HON'BLE COURT. ANNEXURE A2: THE AFFIDAVIT DATED 19.9.2013 SWORN IN BY THE 2ND RESPONDENT.** ## **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.5342 of 2013 .................................................. Dated this the 1[st] day of April, 2014. ## **O R D E R** This petition is filed by the petitioner seeking a direction to the Magistrate not to proceed against the petitioner in view of the subsequent payment made 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 herein as a Managing Director was conducting a banking business in the name and style of M/s. Kumar Bankers at Ezhukone in Kollam District. There was some money transaction and on account of the apprehension raised regarding the business of the petitioner, there was hue and cry and the petitioner was compelled to close down the business and at the instance of the depositors, he had issued cheques and one of such depositors namely the second respondent herein filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') based on which, a case was taken on file as C.C.No.877/2004 on the file of the Judicial First Class Magistrate Court-I, Kottarakkara under Section 138 of the Act and after Crl.M.C.No.5342 of 2013 2 trial, the learned Magistrate found the petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced to undergo simple imprisonment for ten months and also to pay a compensation of Rs.2 lakhs, in default, to undergo simple imprisonment for three months. This was challenged by the petitioner before the Sessions Court, Kollam by filing Crl.A.No.79/2006 and the Third Additional Sessions Judge, Kollam dismissed the appeal confirming the order of conviction and sentence passed by the court below. Aggrieved by the same, the petitioner preferred Crl.R.P.No.2171/2007 before this Court and this Court by order dated 12.9.2007 confirmed the order of conviction passed by the court below but modified the sentence to fine of Rs.2 lakhs and directed the fine amount to be paid to the complainant directly as compensation within five months, in default, to undergo simple imprisonment for three months and also to undergo imprisonment till the rising of court. The petitioner could not pay the amount within the time stipulated but later he had paid the amount to the second respondent. But, now it is understood that proceedings have been initiated by the learned Magistrate for executing the order, that prompted the petitioner to approach this Court by filing 3 Crl.M.C.No.5342 of 2013 ## this petition seeking the following relief: On 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 direct the learned Judicial First Class Magistrate's Court-I, Kottarakkara to reckon the payment of compensation paid directly by the petitioner/accused in C.C.No.877/2004 on its file as is evident from Ann-A2 affidavit as sufficient execution of the sentence imposed by this Hon'ble Court in Crl.R.P.No.2171/2007 on the file of this Hon'ble Court, so as to secure the ends of justice. 3. The second respondent appeared and filed AnnexureA2 affidavit stating that she had received the amount as ordered by this Court as compensation and she has no grievance against the petitioner. 4. Heard both sides. 5. It is an admitted fact that on the basis of a cheque given by the petitioner to the second respondent, second respondent filed a private complaint under Section 138 of the Act before the Judicial First Class Magistrate Court-I, Kottarakkara and that was taken on file as C.C.No.877/2004. It is also an admitted fact that after trial, the petitioner was convicted and sentenced Crl.M.C.No.5342 of 2013 4 under Section 138 of the Act to undergo simple imprisonment for ten months and also to pay a compensation of rupees two lakhs, in default, to undergo simple imprisonment for three months more. This was challenged by the petitioner by filing Crl.A.No.79/2006 before the Sessions Court, Kollam and the learned Third Additional Sessions Judge, Kollam dismissed the appeal confirming the order of conviction and sentence passed by the court below. The petitioner preferred Crl.R.P.No.2171/2007 before this Court and this Court by order dated 12.9.2007 confirmed the order of conviction but modified the sentence as follows: The petitioner is directed to pay compensation of Rs. 2 lakhs to the complainant directly within five months and if he did not pay the amount within that time, then undergo imprisonment till the rising of the court and also to undergo default sentence of three months. 6. Admittedly the petitioner had not paid the amount as directed by this Court. Now after the lapse of long time, he had paid the amount. Then the question is as to whether this will be sufficient for the court below to close the file and if not what is the direction to be given to court below in this regard Crl.M.C.No.5342 of 2013 5 by this Court. This aspect has been considered by this Court in **Beena v. Balakrishnan Nair** (2010 (2) KLT 1017) wherein it has been held that, if fine was imposed as sentence out of which, if a portion of the amount was directed to be paid as compensation to the complainant directly and, if that amount was paid, then the court below has to record that payment on satisfaction of production of document before that court and permit the accused to deposit the balance amount and record the same in the fine register and adjust the payment and close the case. Further, the question as to whether this can be considered under Section 482 of the Code was considered by this Court in the decision reported in **Sivan Kutty v. John Thomas and another** (2012 (3) KHC 676), wherein a Division Bench of this Court has held that if amount is paid directly to the complainant and that was satisfied by production of document, the court can enter the same in the fine register and also show the payment as discharge and close the case allowing the accused to undergo remaining sentence, if any, to be served alone. Further, in the same decision it has been held that even in a case where a portion of the amount was directed to be paid as compensation directly to the complainant, then Crl.M.C.No.5342 of 2013 6 also if such payment is made, the accused is liable to only the balance amount payable as fine and the court can receive the same on satisfaction of payment of the compensation awarded out of fine amount and secured this fact in the fine register and close the case. Same is the case in this case also. Since the petitioner had already paid the amount to the complainant directly which was acknowledged by the complainant by filing Annexure A2 affidavit, this Court feels that applying the principles laid down in the above decisions, the petition can be disposed of as follows: If the petitioner and the complainant appear before the court below and produce receipt for payment of compensation ordered to be paid to the complainant, then the lower court is directed to record the same in the respective fine register and then allow the petitioner to serve the substantive sentence of till the rising of the court alone and close the case. The complainant is also directed to appear before the court below on that day and acknowledge the payment of the amount before that court. The complainant as well as the petitioner are directed to appear before the court below on 21.4.2014 and, if the both the parties appear before that court and produces Crl.M.C.No.5342 of 2013 7 receipt for payment of compensation to the complainant before that court and the complainant also acknowledges the receipt of the same before that court, then the court can enter the same in the respective fine register and permit the petitioner to undergo substantive sentence till the rising of the court as ordered by this Court in the revision and close this case. If the petitioner does not comply with the directions, then the court below is at liberty to proceed against the petitioner in accordance with law. Till 21.4.2014, the lower court is directed to keep the execution of sentence or execution of warrant, if any, issued against the petitioner in abeyance. With the above observations and directions, this petition is disposed of. Office is directed to communicate this order to the concerned court immediately. ## **Sd/K. RAMAKRISHNAN, JUDGE** cl /true copy/ P.S to Judge