K. V. Pramod v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936** ## **Crl.MC.No. 3645 of 2014** **--------------------------ST NO.462/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KALPETTA, WAYANAD DISTRICT** **....** ## **PETITIONER/ACCUSED:** **-----------------------------------** **K.V.PRAMOD, S/O.VENKATA KRISHNAN, MATHOOR ESTATE, NADAVAYAL ROAD, PANAMARAM P O, WAYANAD DISTRICT.** **BY ADV. SRI.P.K.VARGHESE** ## **RESPONDENTS:STATE AND DEFACTO - COMPLAINANT:** **-----------------------------------------------------------------------------------** **1. A.RENGARAJ, AGED 63 YEARS, S/O.AMRITHALINGOM, AMRITHA STORES, NEAR STATE BANK OF TRANVANCORE , KALPETTA P O., WAYANAD DIST-688 340.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY ADV. SMT.NIMA JACOB R2 BY PUBLIC PROSECUTOR SMT. P. MAYA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.MC.No. 3645 of 2014** **-----------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: --------------------------------------------** **ANNEX A1:-TRUE COPY OF THE ORDER DTD 5/12/2008 IN CRL.RP 3679/2008 PASSED BY THIS HONOURABLE COURT.** **ANNEX A2:-THE ORIGINAL OF THE AFFIDAVIT SWORN IN BY THE IST RESPONDENT.** **RESPONDENT(S)' ANNEXURES: ----------------------------------------------N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## K. RAMAKRISHNAN, J. -----------------------------------------------------------------Criminal M.C. No.3645 of 2014 --------------------------------------------------------------------Dated this the 4[th] day of July, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioner, who is the accused in S.T.462/2004 on the file of the Judicial First Class Magistrate, Kalpetta, in Wayand District, for issuing direction to the magistrate under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). 2. It is alleged in the petition that, the petitioner is the accused in S.T.462/2004 on the file of the Judicial First Class Magistrate Court, Kalpetta, which was taken on file on the basis of a private complaint filed by the 1[st] respondent under Section 138 of the Negotiable Instruments Act(hereinafter called 'the Act'). After trial, the trial court convicted the petitioner and sentenced him and on appeal, the Sessions Judge confirmed the conviction, but modified the substantive sentence to till rising of the court, Crl.M.C.No. 3645/ 2014 2 in addition to the compensation ordered by the learned magistrate. Thereafter he filed Crl.R.P.No.3679/2008 before this court and this court by order dated 05.12.2008 confirmed the order of conviction, sentence passed by the appellate court and granted four months time to pay the compensation and directed the petitioner to appear before the learned magistrate on 07.04.2009. But he could not pay the amount within time due to financial difficulty and since he did not appear on 07.04.2009, the learned magistrate had issued warrant and that is pending. Now he had paid the amount to the complainant and he had filed an affidavit stating these facts. Unless a direction is given from this court, the learned magistrate will not allow the petitioner to undergo imprisonment till rising of the court, as ordered by the Session Court and confirmed by this court. So he has no other remedy, except to approach this court, seeking the following relief: “It is humbly prayed that this Hon'ble court may be pleased to direct the Judicial First Class Magistrate Court, Kalpetta to permit the petitioner to appear before the court for receiving the sentence of imprisonment till rising of the court, in the interest of justice.” Crl.M.C.No. 3645/ 2014 3 3. 1[st] respondent appeared through counsel and submitted that, he had received the amount ordered as compensation from the petitioner and filed Annexure-A2 affidavit. He had also submitted that he is prepared to appear before the concerned magistrate court and file an acknowledgment to that effect also. The counsel for the petitioner prays for allowing the application. 4. The application was opposed by the learned Public Prosecutor on the ground that, the power cannot be invoked in a case that has already been disposed of. 5. It is an admitted fact that, the petitioner was an accused in S.T.462/2004 of Judicial First Class Magistrate Court, Kalpetta of Wayanad District, which was taken on file on the basis of a private complaint filed by the first respondent under Section 138 of the Negotiable Instruments Act. It is also an admitted fact that, the trial court convicted and sentenced him for that offence and he filed appeal and the appellate court confirmed the order of conviction and also payment of compensation with default Crl.M.C.No. 3645/ 2014 4 sentence passed by the court below, but modifying the substantive sentence to imprisonment till rising of the court. Though he filed revision before this court as Crl. R.P.No.3679/2008 and that was dismissed by this court as per Annexure-A1 order granting four months time to pay the amount and directing the petitioner to surrender before the court on 07.04.2009, but he could not pay the amount. Now, he had paid the amount. Since the time has been expired, according to the petitioner, unless this court directs, the magistrate will not allow him to record the payment and allow him to serve the imprisonment till rising of the court, as ordered by the appellate court and confirmed by this court. 6. The question regarding the fact, as to whether the payment made outside court can be recorded, as an acknowledgment of payment, as directed in the order, has been considered by this court in **Beena v. Balakrishnan Nair and Another (2010 (2) KHC 851** and **Sivankutty v. John Thomas (2012 (4) KLT 21)** . In Crl.M.C.No. 3645/ 2014 5 those decisions, this court has held that, when a direction has been made in the order to pay the compensation either out of the fine or as compensation under Section 357(3) of the Code of Criminal Procedure to the party and the party pays the amount directly and appears before the concerned magistrate court and acknowledges the payment by the complainant, then that can be recorded in the fine register and treat this as proper compliance of the order. So under the circumstances, this court feels that the petition can be disposed of as follows: If the petitioner as well as the first respondent surrenders before the Judicial First Class Magistrate court-I, Kalpetta, on 07.07.2014 and convince that court by producing the receipt for payment of the amount by the petitioner to the first respondent and acknowledges the payment by the first respondent appearing in person and also represented by his counsel, then the learned magistrate is directed to record the Crl.M.C.No. 3645/ 2014 6 same in the fine register as directed in the decisions cited (supra) and allow the petitioner to serve the sentence of imprisonment, till rising of court, in this case. Office is directed to communicate this order to the concerned court, immediately. Handover the copy of this order to the counsel for the petitioner also, so as to enable him to produce the same before that court. With the above direction and observation, the criminal miscellaneous case is disposed of. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy// P.A. to Judge ss