K.V. Pramod v. Abdul Majeed and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936** ## **Crl.MC.No. 3301 of 2014 ()** **--------------------------ST 2570/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT - I, KALPETTA IN Crl.Rev.Pet 3680/2008 of HIGH COURT OF KERALA** **----------** **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/COMPLAINANT & STATE:** **-----------------------------------------------------------** **1. ABDUL MAJEED, AGED 53 YEARS, S/O.MAMMU, THANIYATTUPARAMBATH, NEERATTADI, PANAMARAM.P.O., WAYANAD DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SMT.NIMA JACOB R2 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** **Crl.MC.No. 3301 of 2014 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNEXURE-I: COPY OF THE ORDER DATED 05-12-2008 IN CRL.R.P NO.3680/2008 OF THIS HONOURABLE COURT.** **ANNEXURE-II: ORIGINAL OF THE AFFIDAVIT SWORN BY THE IST RESPONDENT. RESPONDENT(S)' EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** ## **BP** ## K. RAMAKRISHNAN, J. ------------------------------------------------Crl. M.C. No.3301 of 2014 -------------------------------------------------Dated this the 19[th] day of June, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioner, seeking a direction to be given to the court below in S.T.2570/2005 on the file of the Judicial First Class Magistrate Court, Kalpetta 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.No.2570/2005 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 first respondent under Section 138 of the Negotiable Instrument Act. After trial, the learned magistrate found him guilty under Section 138 of the Negotiable Instrument Act and convicted him there under and sentenced him to undergo simple imprisonment for one month and also to pay 2 Crl. M.C.3301 of 2014 an amount of ₹ 30,000/, as compensation to the complainant, in default, undergo simple imprisonment for 15 days. The petitioner filed Crl.Appeal 115/2006 before the Sessions Court, Kalpetta, and the learned Sessions Judge partly allowed the appeal, confirming the order of conviction and also the compensation but set aside the substantive sentence of one month simple imprisonment and reduce the same to imprisonment, till rising of the court. Though petitioner filed Crl.R.P.3680/2008 before this court, this court by Annexure-I order dated 05.12.2008 dismissed the revision at the admission stage itself, granting four months time to pay the amount, but he could not pay the amount in time. Now he had paid the amount. Since the time has expired, the lower court is not permitting the petitioner to receive the substantive sentence of imprisonment till the rising of the court, accepting the payment to the complainant directly. So the petitioner has no other remedy, except to approach this Crl. M.C.3301 of 2014 3 ## 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 court in the interest of justice”. 3. First respondent also appeared through counsel and filed affidavit admitting the receipt of the amount of 30,000/- ordered as compensation together₹ with interest. So he has no objection in record acknowledgment of the amount. 4. The counsel for the petitioner submitted that, unless a direction is given, court below will not allow him to undergo simply the substantive sentence of imprisonment, till rising of the court. 5. The application was opposed by the learned Public Prosecutor. 6. It is an admitted fact that, the petitioner was an accused in S.T. 2570/2005 on the file of Judicial First Class Magistrate Court, Kalpetta, which was taken on file on the basis of a private complaint filed by the first Crl. M.C.3301 of 2014 4 respondent, alleging commission of offence under Section 138 of the Negotiable Instrument Act. It is also an admitted fact that after trial he was convicted by the trial court for the said offence and sentenced to undergo imprisonment for one month and also to pay a compensation Rs.30,000/-₹ to the complainant, in default, to simple imprisonment for 15 days under Section 357(3) of the Code of Criminal Procedure. It is also an admitted fact that, he filed Crl.Appeal 115/2006 before the Sessions Court, Kalpetta, and the learned Sessions Judge allowed the appeal in part, confirming the order of conviction but set aside the substantive sentence of imprisonment for one month by reducing the same to imprisonment, till rising of the court. Though the petitioner filed Crl.R.P.3680/2008 before this court against that order and the same ended in dismissal, evidenced by Annexure-1 order, but granted four months time to deposit the amount from 05.12.2008. Admittedly he had not paid the amount as directed and now it is seen from 5 Crl. M.C.3301 of 2014 the affidavit filed by the complainant that, the amount has been received by the complainant and he had no grievance about the same. 7. In the decision reported in **Beena v. Balakrishnan Nair and Another (2010 (2) KHC 851)** , this court held that, if a fine is imposed as sentence and out of the fine, if the amount is directed to be paid to the complainant as compensation, and if part of the amount is paid, even then, if the balance amount is paid by the accused before the trial court, after getting acknowledgment from the complainant regarding the part payment, then the trial court can enter the same in the fine register and record discharge of that portion of the sentence. The question whether a petition of this nature can be entertained under Section 482 of the Code of Criminal Procedure came to consideration in **Sivankutty v. John Thomas (2012 (4) KLT 21)** and the Division Bench of this court held that, the petition is maintainable and if 6 Crl. M.C.3301 of 2014 the compensation was directed to be paid to the complainant directly and if it was done, then the trial court can record that payment as substantial compliance, if the complainant appeared before that court and acknowledges the same. So the same yardstick can be applied in this case also. So the petition is disposed of as follows: If the petitioner and the complainant appears before the court below on 07.07.2014 and the complainant files a receipt acknowledging the payment through his counsel before the court below, and on satisfaction of that payment, learned magistrate is directed to record the same in the fine register as compliance of the direction to pay compensation as ordered by that court and confirmed by the Sessions Court and this court, then permit the petitioner to undergo substantive sentence of imprisonment till rising of the court, on that day Crl. M.C.3301 of 2014 7 itself. With the above direction and observation, this criminal miscellaneous case is disposed of. Communicate this order to the court below at the earliest. Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss