M. Babu v. R. Shivaji and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 5TH DAY OF APRIL 2013/15TH CHAITHRA 1935** **Crl.MC.No. 919 of 2013 () -------------------------** **(AGAINST CC 827/1998 of J.M.F.C.,PAYYANNUR.)** **PETITIONER/ACCUSED:------------------** **M.BABU, S/O.K.K.K.ADIYODI, AGED 52 YEARS, C/O.P.V.GOVINDAN NAMBIAR, PUTHANVEEDU, AZHIKOD, KANNUR-9.** **BY ADVS.SRI.C.K.SREEJITH SMT.P.R.RASEENA** ## **RESPONDENTS/COMPLAINANT & STATE:-** **-------------------------------** **1. R.SHIVAJI, S/O.MADAVI AMMA, AGED 46 YEARS RAMAPURATH HOUSE, KANDANGALI, PAYYANNUR - 672 591** **2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 919 of 2013 ()** ## **-------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** |**ANNEXURE A1:**|**COPY OF THE JUDGMENT IN CRL.R.P.No.1835/2010**| |---|---| ||**ON THE FILE OF HON'BLE HIGH COURT OF KERALA**| ||**DATED 23.9.2010.**| |**ANNEXURE A2:**|**COPY OF THE MEMO SUBMITTED BY THE FIRST**| ||**RESPONDENT.**| |**ANNEXURE A3:**|**COPY OF THE PETITION SUBMITTED BY THE**| ||**PETITIONER TO RECEIVE SUBSTANTIVE SENTENCE**| ||**TILL THE RISING OF THE COURT.**| |**RESPONDENTS' EXHIBITS**<br>**:-**|**NIL.**| **( TRUE COPY )** _**Kvs/-**_ **PA TO JUDGE.** ## **C.T.RAVIKUMAR, J.** = = = = = = = = = = = = Crl.M.C.No.919 of 2013. = = = = = = = = = = = = Dated this the 5[th] April, 2013. ## **O R D E R** The petitioner is the accused in CC.No.827/1998 on the files of the Court of the Judicial First Class Magistrate-I, Payyannur. He was indicted alleging commission of offences punishable under Section 138 of the Negotiable Instruments Act and he was found guilty and consequently convicted and sentenced. Feeling aggrieved by the conviction and sentence the petitioner approached this Court by filing Criminal Revision Petition No.1835/2010 and the same was disposed of as per Annexure-A1 order. The conviction entered against the petitioner was confirmed. However, the sentence was further modified. The amount of fine imposed as per Annexure-A1 was enhanced to the tune of Rs.1,05,000/- and the petitioner herein was granted three months time from 23.09.2010 to deposit the said **Crl.MC.No.919/2013.** 2 amount before the trial court. The petitioner was directed to surrender before the trial court on 23.10.2010, to receive the sentence and to deposit the fine amount. 2. The contention of the petitioner is that the fine amount directed to be deposited was paid directly to the complainant within the time stipulated by this Court in Annexure-A3. Annexure-A2 is the memo produced by the petitioner to substantiate the said contention. It is the further contention of the petitioner that subsequent to the payment of the said amount directly to the complainant, he appeared before the trial court to receive the sentence in terms of Annexure-A1. According to him, earlier, he had also approached the Official Exchequer for remitting the amount of Rs.1,05,000/- in terms of Annexure-A1 order. However, the competent officer refused to receive the amount stating the reason that the time stipulated for that purpose had expired by then. Subsequently, the trial court issued a non bailable warrant against the petitioner and **Crl.MC.No.919/2013.** 3 revenue recovery proceedings were also initiated. It is in these circumstances, the petitioner has filed this petition. 3. I have heard the learned counsel for the petitioner and also the learned Public Prosecutor. 4. In view of the order I propose to issue in this case, I do not think it necessary to issue notice to the first respondent/complainant. The question whether in such a circumstance, as is obtained in this case, the convict should suffer the default sentence was considered by this Court in **Girish v. Muthoot Capital Service (P) Ltd.** reported in (2007(1) KLT 16), this Court held as follows: “Whenever a direction for payment of fine/compensation is issued along with the rider that in default of payment of fine/compensation, the indictee must undergo default sentence, such default sentence shall lapse at any time when the payment is made either before or after the default sentence starts running.” 5. As stated hereinbefore, in this case the very contention of the petitioner is that within the time stipulated by this Court in Annexure-A1, the amount **Crl.MC.No.919/2013.** 4 directed to be deposited was paid directly to the first respondent/complainant, as is obvious from Annexure-A2. True that it is so done in deviation with the directions issued by this Court in Annexure-A1. At the same time, it is to be noted that as per Annexure-A1 this Court also directed to pay an amount of Rs.1.05,000/- to the complainant on realisation of the fine amount. Therefore, the action in making the payment of the said amount directly to the complainant is inconsequential. Evidently the petitioner had paid the amount of compensation directly to the first respondent/complainant. The procedure which has to be followed in such a situation is as per the decision in **Beena v. Balakrishnan Nair** (2010(2) KLT 1017). In a situation like the one on hand, this Court in Beena's case (supra) held that if the amount of fine ultimately to be paid as compensation to the complainant, was directly paid to the concerned complainant instead of depositing before the court, it would be well within the powers of the learned **Crl.MC.No.919/2013.** 5 Magistrate to accept the same as sufficient compliance with the directions contained in the final order passed in the revision petition. 6. In the light of the decision of this Court in Beena's case (supra) I am inclined to dispose of this petition hereunder: (i) The petitioner shall deposit the amount of Rs.2,500/- in the Head of Account “Administration of Justice, 0070 - OAS 01 - AJ 800 – 95” to comply with the directions contained in Annexure-A1 to pay an amount of Rs.2,500/- to the State Exchequer. After effecting remittance of the aforesaid amount to the State Exchequer within a period of one week from the date of receipt of copy of this order, the petitioner shall appear before the trial court within a period of one week, thereafter. He shall also produce the original of Annexure-A2 evidencing payment of Rs.1,05,000/- directly to the first respondent/complainant. The court below shall then put the second respondent, on notice to ascertain whether he has received the amount of Rs.1,05,000/- from the petitioner as has been stated in AnnexureA1. After satisfying the factum of such payment to the first respondent and the amount of Rs.2,500/- to the State Exchequer make appropriate entry regarding payment of fine in the fine register kept in the court **Crl.MC.No.919/2013.** 6 and also permit the petitioner to undergo the sentence of imprisonment till the rising of the court and then, the matter shall be closed accordingly. To enable the petitioner to comply with the directions in this order, the warrant of arrest, if any issued against the petitioner shall be kept in abeyance till the expiry of one month from the date of production of copy of this Order before the trial court till necessary entry regarding sufficient compliance of the direction in Annexure-A1 is made, whichever is earlier. - (ii) The revenue recovery proceedings initiated against the petitioner shall also be kept in abeyance till such time and in case the petitioner satisfies the directions contained in Annexure-A1 order dated 23.09.2010 in Crl.R.P.No.1835/2010 in terms of this Order, all further proceedings shall be dropped. This Criminal Miscellaneous Case is disposed of as above. Sd/- **C.T.RAVIKUMAR,** **(Judge)** ## **Kvs/-** **The words “second respondent” occurring in line 16 of paragraph 6(i) of the final order dated 05.04.2013 in Crl.MC.No.919/2013 are corrected and substituted as “first respondent”, vide order dated 08/11/2013 in Crl.M.A.No.8916/2013.** **Sd/- Registrar (Judicial)**