M. Nazar v. K. Suseendran & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 18TH DAY OF JULY 2014/27TH ASHADHA, 1936** ## **Crl.MC.No. 4063 of 2014 ()** **--------------------------CC. NO.1814/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM,. .......** ## **PETITIONER/ACCUSED:** **-----------------------------------** **M. NAZAR, AGED 40 YEARS, S/O.MEERASAHIB, PANAYIL THEKKETHIL VEEDU, HOUSE NO.342, 11TH WARD, ULIYAKOVIL WEST, ASRAMAM P.O., KOLLAM.** ## **BY ADV. SRI.R.SATISH KUMAR.** ## **RESPONDENTS/DEFACTO COMPLAINANT & STATE:** **------------------------------------------------------------------------------------** **1. K. SUSEENDRAN, THAIYIL VEEDU, 11TH WARD, ULIYAKOVIL WEST WARD, ASRAMAM P.O., KOLLAM-691 002.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 034.** **R1 BY ADV. SRI.T.MADHU. R2 BY PUBLIC PROSECUTOR SMT.P. MAYA.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 4063 of 2014** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE-A1: COPY OF THE JUDGMENT DATED 09/04/2010 IN CR.R.P.NO.1274/2010 OF THIS HON'BLE COURT. ANNEXURE-A2: COPY OF THE ORDER DATED 18/10/2010 IN CRL.M.A.NO.9594/2010 IN CRL.R.P.NO.1274/2010 OF THIS HON'BLE COURT. ANNEXURE-A3: COPY OF THE RECEIPT DATED 15/07/2014 ISSUED BY THE 1ST RESPONDENT. ANNEXURE-A4: COPY OF THE AFFIDAVIT SWORN BY THE 1ST RESPONDENT.** ## **RESPONDENT'S ANNEXURES:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs.** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.4063 of 2014 .................................................. Dated this the 18[th] day of July, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioner, who is the accused in C.C.No.1814/2005 on the file of the Judicial First Class Magistrate Court-I, Kollam to issue directions to the Magistrate to release the petitioner on bail 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 is the accused in C.C.No.1814/2005 on the file of the Judicial First Class Magistrate Court-I, Kollam, which was taken on file on the basis of a private complaint filed by the first respondent alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The learned Magistrate convicted the petitioner and sentenced him. The petitioner filed Crl.A.No.351/2007 before the Sessions Court, Kollam and the same was also dismissed. He had filed Crl.R.P.No.1274/2010 before this Court and this Court by Annexure-A1 order confirmed the order of conviction, but modified the sentence to fine alone to Rs.1,05,000/- and 2 Crl.M.C.No.4063 of 2014 in default, to undergo simple imprisonment for three months and further directed that, if amount is realised, the same shall be paid to the complainant as compensaton under Section 357(1) of the Code. Six months time was granted to the petitioner to pay the amount and the criminal revision petition was disposed of by this Court on 9.4.2010. But, he could not pay the amount within time. Later the time was extended as per Annexure-A2 order, by enhancing the amount to Rs.1,10,000/- for a period of two months more from 18.10.2010. Within that time also, the amount could not be paid. Non bailable warrant has been issued against him to execute the sentence and he was arrested on 12.7.2014 and he is in custody. Now amount has been paid to the complainant and the complainant filed Annexure-A3 receipt and Annexure-A4 affidavit stating that the amount has been received. Unless a direction is given from this Court, the learned Magistrate will not issue release order. So the petitioner has no other remedy except to approach this Court seeking the following relief: “For 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 Judicial 3 Crl.M.C.No.4063 of 2014 First Class Magistrate Court-I, Kollam to reckon the payment directly made by the petitioner to the 1[st] respondent as evidenced by Annexure-A3 receipt and Annexure-A4 affidavit as sufficient compliance of the order dated 9.4.2010 in Crl.R.P.No.1274/2010 on the file of this Hon'ble Court and order release of the petitioner forthwith, so as to secure the ends of justice.” 3. The first respondent has appeared through counsel. 4. Heard the counsel for the petitioner, the first respondent and the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that since amount has been paid, his custody is not required any more. 6. The counsel for the first respondent also submitted that he has received the amount. 7. It is an admitted fact that the petitioner has been convicted by the Judicial First Class Magistrate Court-I, Kollam in C.C.No.1814/2005 under Section 138 of the Act and that was confirmed by the Sessions Court in Crl.A.No.351/2007. But in the revision, as per Annexure A1 order, this Court though disposed of the revision confirming the order of 4 Crl.M.C.No.4063 of 2014 conviction, the sentence was modified to one of fine alone and he was sentenced to pay fine of Rs.1,05,000/- in default to undergo simple imprisonment for three months and if the fine amount was paid, it was directed to be paid to the complainant as compensation under Section 357 (1) of the Code. Six months time was granted by the court. Later as per Annexure-A2 order, that was further extended by two months, but the fine amount was increased to Rs.1,10,000/-. Even then the amount was not paid. Now it is submitted that he was arrested and he is in custody as well. Now the amount has been paid. Then the question is whether this can be accepted and direction can be given as requested for in this petition. This question has been considered by this Court in **Beena v. Balakrishnan Nair** (2010 (2) KLT 1017) and it was held that, if fine is imposed and out of fine compensation is awarded and if party has directly paid the amount or portion of the amount, then the Magistrate can record that payment and enter the same in the fine register and dispose of the case. The same question as to whether that can be done by the High Court under Section 482 of the Code was considered by this Court in **Sivankutty v. John Thomas** (2012 (3) KHC 676) and Crl.M.C.No.4063 of 2014 5 in that case also it was held that if there is a direction to pay the amount directly out of fine amount and if the amount is paid directly to the party and even acknowledged by the other side, then that can be recorded in the fine register and that will be treated as compliance of the order. In view of the dictum, if the Magistrate is satisfied that the amount has been paid directly as directed by this Court, even that can be recorded in the fine register and appropriate order of release can be passed. So the petition is disposed of as follows: If the complainant appears before the Judicial First Class Magistrate Court-I, Kollam along with his counsel and counsel for the accused and produces receipt for payment of the amount and also accepting acknowledgment of the amount and convinced the court that the amount has been paid, then the learned Magistrate is directed to record the same in the fine register as fully satisfied as directed in the decisions reported in **Beena** as well as in **Sivankutty** (cited supra) and issue necessary release order to the jail authorities to release the accused, if his custody is not required in connection with any other case. Office is directed to communicate this order to the 6 Crl.M.C.No.4063 of 2014 concerned court immediately. Hand over copy of the order to the counsel for the petitioner and the counsel for the first respondent also so as to enable them to produce the same before the court below for necessary compliance. With the above directions and observations, the petition is disposed of. **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.4063 of 2014 7