Kunhalan Mansoor K.K. v. State of Kerala and Aslam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 31ST DAY OF OCTOBER 2017/9TH KARTHIKA, 1939** **Crl.MC.No. 7479 of 2017 ()** **--------------------------CRA.260/2014 of ADDITIONAL SESSIONS COURT -IV, KOZHIKODE ST.471/2013 of JUDICIAL FIRST CLASS MAGISTRATE COURT, NADAPURAM** ## **PETITIONER(S): -------------** **KUNHALAN MANSOOR K.K., AGED 39 YEARS, S/O KUNHALAN MOIDU, KOTHAN KOTTUMMAL HOUSE, KUTTIADY.** **BY ADV. SRI.M.G.SREEJITH** **RESPONDENT(S): --------------** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031. 2 ASLAM, AGED 35 YEARS, S/O MOIDU HAJI, KOTTATHUMMAL HOUSE, MARUTHOMAKARA, KAVILAMPARA AMSON & DESOM, VATAKARA TALUK, KOZHIKODE-673513.** **R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY R2 BY ADV. SMT.RONA GEEVARGHESE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** **Crl.MC.No. 7479 of 2017 () ---------------------------** ## **APPENDIX** |**PETITIONER(S)' ANNEXURES**|**PETITIONER(S)' ANNEXURES**| |---|---| |**------------------------**|| |**A1**|**A TRUE COPY OF THE ORDER IN CRL.RP.1434/2015 DATED**| ||**13.11.2015**| |**A2**|**ORIGINAL AFFIDAVIT EXECUTED BEFORE THE NOTARY BY THE 2ND**| ||**RESPONDENT ON 07.10.2017**| ## **RESPONDENT(S)' ANNEXURE ----------------------NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 7479 of 2017 ================== Dated this the 31[st] day of October, 2017 ## **O R D E R** The petitioner is accused for offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.No. 471/2013 on the file of the Judicial First Class Magistrate's Court, Nadapuram, instituted on the basis of the complaint filed by the 2[nd] respondent herein. The amount involved in the dishonoured cheque in this case is for Rs.1 lakh. The trial court as per the judgment dated 24.3.2014 has convicted the petitioner for the abovesaid offence and has sentenced him to undergo imprisonment till rising of the court and to pay fine of Rs.1,07,000/-. Aggrieved thereby, the petitioner had filed Crl.Appeal No.260/2014 before the appellate Sessions Court concerned (Court of Addl. Sessions Judge-IV, Kozhikode). The appellate Sessions Court, as per the impugned judgment rendered on 7.3.2015 has dismissed the said appeal and has thereby confirmed the impugned conviction and sentence imposed by the trial court. Challenging those concurrent verdicts of the courts below, the petitioner had preferred Crl.R.P.No.1434/2015 before this Court. This Court, as per Anx.A-1 order dated 13.11.2015, has confirmed the conviction imposed on the petitioner, maintaining the substantive sentence of imprisonment till rising of the court imposed by the courts below, but reduced the fine amount to Rs.1 Crl.M.C.No.7479/17 - : 2 :- lakh and also reduced the default sentence from six months' simple imprisonment to three months' simple imprisonment. The fine amount so realised was directed to be disbursed as compensation to the complainant in terms of Sec. 357(1)(b) of the Cr.P.C. It was also ordered that in case there is any civil suit between the parties, then the civil court executing the decree in such civil suit, should take note of the amount of compensation awarded and received in this case, etc. 2. According to the petitioner, due to his impecunious financial circumstances, he was not in a position to raise amount of Rs.1 lakh and that therefore later the trial court had executed the sentence and that he has now been imprisoned in Central Jail, Kannur on 27.9.2017, mainly on account of the petitioner's financial inability to pay the fine amount of Rs. 1 lakh. That later the petitioner's brother raised money from close friends and relatives and had directly paid amount of Rs.1 lakh to the 2[nd] respondent (complainant) in full and final settlement of all liabilities pertaining to the present impugned criminal proceedings, which led to Anx.A1 revisional order of this Court. Anx. A-2 is said to be the affidavit dated 7.10.2017 sworn to by the 2[nd] respondent (complainant) stating that he has received the full fine amount of Rs.1 lakh directly from the petitioner's brother on 7.10.2017 in full and final settlement of all the liabilities pertaining to the present impugned criminal proceedings, etc. Crl.M.C.No.7479/17 - : 3 :- and that the 2[nd] respondent has no further grievances in that regard, etc. 3. It is in the light of these factual aspects that the petitioner has preferred the instant Criminal Miscellaneous Case by taking recourse to the remedy conferred under Sec. 482 of the Cr.P.C., with the following prayers: _“.... to pass an order of release the petitioner from the imprisonment as per the judgment in Crl.R.P.No. 1434/15 in Crl.A 260/14 of the Additional Sessions Court-IV, Kozhikode in judgment of S.T.No. 471/13, Judicial First Class Magistrate Court, Nadapuram.”_ 4. Heard Sri.M.G.Sreejith, learned counsel appearing for the petitioner (accused), Smt.Rona Geevarghese, learned counsel appearing for R-2 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. 5. The learned counsel appearing for the petitioner has reiterated the factual aspects borne out in the memorandum of this Criminal Miscellaneous Case as well as in its annexures. Smt.Rona Geevarghese, learned counsel appearing for R-2 (complainant) would submit on the basis of the instructions of her party that the complainant has now received the full fine/ compensation of Rs.1 lakh directly from Sri.Faisal, brother of the petitioner (accused), in full and final settlement of the present impugned criminal proceedings, which led to Anx.A-1 revisional order passed by this Court and that the 2[nd] respondent (complainant) has no further grievances against the petitioner in relation to the dishonoured cheque involved in this case and that the complainant supports the prayer of the petitioner that he Crl.M.C.No.7479/17 - : 4 :- be released from imprisonment as he has already discharged his liability in connection with the said case. 6. The Division Bench of this Court in the decision in _**Sreedharan v. Bharathan**_ reported in 2014 (1) KLT 236, has held that situations could arise where due to pressing reasons completely beyond the control of the accused, he may not be able to make the payment on the stipulated date and that he will be willing to make the payment together within the extended time sought for and that the complainant may also be willing to receive such payment and to extend the time limit in that regard and that in such situations by granting the extension of time sought for the High Court will not be transgressing the bar under Sec.362 of the Cr.P.C., which indicts that a signed judgment or order, of the criminal court shall not be altered or reviewed, except for correction of typogriphical error, clerical mistake, etc. and that by granting such extention of time as sought for in a petition under Sec.482 of the Cr.P.C. will only be securing the ends of justice by giving relief to both the litigating parties and that by granting such enlargement of time, the High Court will not in any manner be reviewing its substantive decision to confirm the conviction and to modify the sentence, etc. 7. This Court in the decision in _**Girish v. Muthoot Capital Service (P) Ltd**_ . reported in 2007 (1) KLT 16, has held that whene there Crl.M.C.No.7479/17 - : 5 :- is a direction for payment of fine/compensation along with the rider that in default of payment of fine/compensation, the accused must undergo default sentence, such a default sentence shall lapse at any time when the payment is made either before or after the default sentence starts running and that when the court concerned or the superior courts grant time for payment and stipulate a date for payment, it only means and implies that the default sentence shall not be executed till that day and action shall not be taken to execute the sentence till the prescribed date, etc. 8. Further the Division Bench of this Court in the decision in _**Sivankutty v. John Thomas**_ reported in 2012 (4) KLT 21, has also held that if compensation is payable under S.357(3) of Cr.P.C. and that if 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 that 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 the complainant and that 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 Crl.M.C.No.7479/17 - : 6 :- 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 the Cr.P.C. 9. Sec.25 of the General Clauses Act, 1897 (Central Act 10 of ## 1897), which deals with recovery of fine, provides as follows: _"_ _**Sec. 25: Recovery of fines** .- Sections 63 to 70 of the Indian Penal Code (45 of 1860) and the provisions of the Code of Criminal Procedure for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to all fines imposed under any Act, Regulation, rule or bye-law unless the Act, Regulation, rule, or bye-law contains an express provisions to the contrary.”_ Sec.69 of the I.P.C., dealing with termination of imprisonment on payment of proportional part of fine, etc. provides as follows: _**"Sec.69: Termination of imprisonment on payment of proportional part of fine.** - If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate.”_ 10. The fine amount in this case is Rs. 1 lakh and now it is clearly stated and admitted by the 2[nd] respondent complainant that he has already received the full fine/compensation amount of Rs.1 lakh directly from the brother of the petitioner and the said factual aspects are also seen supported by Anx. A-2 affidavit sworn to by the complainant. However, the crucial aspect of the matter is that the original power in the matter of execution of the sentence is vested primarily with the trial court concerned. Therefore, these are all matters, which should be placed before the trial Crl.M.C.No.7479/17 - : 7 :- court for its considered decision. Moreover, no explicit permission was given by this Court to make payment of fine amount directly to the complainant. Necessary endorsement in that regard should be made in the fine register regarding the payment of the fine amount. In these circumstances, it is ordered that the 2[nd] respondent shall take back the original of Anx. A-2 sworn affidavit and file the same before the trial court concerned with a memo of the counsel for the complainant, who appeared for that party before the trial court, stating about the facts regarding receipt of the full fine/compensation amount of Rs.1 lakh directly from the petitioner and that said amount is in full and final settlement of all liabilities involved in this case, etc. Upon the learned counsel for the complainant filing Anx.A-2 sworn to affidavit as well as memo of the counsel stating about the abovesaid factual aspects, the trial court should treat that the full fine amount of Rs. 1 lakh has been paid on behalf of the petitioner (accused) and that it would amount to full and final settlement of all liabilities in this case. Correspondingly, it should be treated by the trial court that the said amount of Rs.1 lakh has been remitted as fine by the petitioner (accused) and then disbursed as compensation to the complainant in terms of Sec. 357(1)(b) and on that basis, necessary entries should be made in the fine register regarding the abovesaid payment of fine in the manner indicated herein above. Thereafter, on the filing Anx.A-2 Crl.M.C.No.7479/17 - : 8 :- sworn affidavit and the memo of the counsel for the complainant, the trial court shall forthwith issue necessary directions to the Jail authorities concerned for immediate release of the petitioner (accused) from prison. 11. The Registry shall return back the original of Anx.A-2 sworn affidavit to the counsel for the 2[nd] respondent complainant on a request in that regard made by that party. The Registry should keep a photocopy of Anx.2 affidavit in the case file. The Registry will also forward a copy of this order to the trial court concerned for necessary information and necessary action. With these observations and directions, the aforecaptioned Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge