M.K. Lalitha v. PM Faizal Rahiman and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 31ST DAY OF JULY 2012/9TH SRAVANA 1934** ## **Crl.MC.No. 195 of 2012 ()** **------------------------S.T.NO.503/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, KOZHIKODE CRL.A.NO.886/2008 OF 2ND ADDITIONAL SESSIONS COURT, KOZHIKODE** ## **PETITIONER(S)/ACCUSED:** **---------------------** ## **M.K.LALITHA** **W/O.SHANMUGHAN, TEACHER, GOVERNMENT V.H.S.SCHOOL GOVERNMENT ARTS COLLEGE P.O., NEAR VATTAKINAR MEENCHANDA, KOZHIKODE.** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **COMPLAINANT(S)/STATE :** **----------------------** **1. PM FAIZAL RAHIMAN** - **S/O.MOOSAKOYA, P.M.MANZIL, KOLATHARA P.O. CHERUVANNUR AMSOM DESOM, KOZHIKODE-673 017.** **2. STATE OF KERALA,** - **REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-31.** **BY PUBLIC PROSECUTOR SRI.R.RANJITH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **ANNEXURE A: A COPY OF THE ORDER DATED 22/10/2010 IN CR.R.P.NO.3122/2010.** **ANNEXURE B: A COPY OF THE RECEIPT SHOWING THE PAYMENT OF RS.1,10,000/TO THE 1ST RESPONDENT.** **RESPONDENTS' EXHIBITS :** **NIL** ## **S.S.SATHEESACHANDRAN, J.** ## **------------------------------Crl.M.C.NO.195 OF 2012 (D) ----------------------------------Dated this the 31[st] day of July, 2012** ## **O R D E R** Petitioner is a convicted accused for the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act'. Sentence imposed against her as modified in the revision by this Court directed payment of fine of Rs.1,15,000/within a period of three months from the date of such order with default term of imprisonment for three months. Out of the fine amount, if realised, a sum of Rs.1,10,000/- was directed to be paid as compensation to the complainant and the rest Rs.5,000/to the State Treasury. Admittedly, the fine amount fixed was not paid within time. Later, petitioner, it is submitted, moved the Magistrate for dropping further proceedings in the case after receiving a sum of Rs.5,000/- due as fine payable to the State. She has directly paid the compensation due to the complainant was her case producing a receipt purported to have been executed by the complainant to evidence such payment. Her **Crl.M.C.NO.195/2012** **2** request was turned down by the Magistrate is her case to prefer the above petition for issue of appropriate directions/orders to the Magistrate to record the payment of fine after accepting Rs.5,000/- payable to the State. 2. Petition was received on file directing payment of the sum of Rs.5,000/- due to the State within the time fixed. That payment has been made, submits the learned counsel for the petitioner producing the receipt thereof. 3. The short question emerging for consideration on the facts and circumstances presented in the case is whether there is any bar for the Magistrate in recording payment directly paid to the complainant and also of receiving that part of the amount, which was directed to be paid as fine to the State, to drop the proceedings. The time limit fixed for such payment was over, it seems, perhaps was one of the reasons for non-acceding to the request made by the petitioner/accused. Similarly, how far the Magistrate will be competent to recognise payment stated to **Crl.M.C.NO.195/2012** **3** have been directly paid to the complainant must have caused some difficultly in recognising and acting upon the request of the accused. A Division Bench of this Court, which was invited to answer some questions having some bearing on the issues referred to above, in **Crl.M.C.No.2202 of 2011 (K.A. Najeeb** **v. Rajendran and another)** by order dated 8[th] June, 2012 has observed thus: _“10. The compensation is payable either under Section 357(1) or 357(3) of Code of Criminal Procedure. If compensation forms part of the fine, it could only be under section 357(1) of Code of Criminal Procedure. If compensation is awarded separately and does not form part or whole of the fine, it could only be under Section 357(3) of Code of Criminal Procedure. If compensation forms part of the fine, either whole or part, as the sentence is fine procedure or its payment provided under Rule 192 of Criminal Rules of Practice and the fine is to be paid in court and when payment is made it shall be entered in the Register and the fine shall be credited to the Sub Treasury as provided under Rule 195. If any part of the fine is to be paid, either in whole or in part as compensation it shall be as provided under Rule 203 and shall be entered in the register of fine imposed and refunded in Form No.20 as provided earlier. On the other hand, if compensation is payable under Section 357(3) of Code of Criminal Procedure and court directs either to deposit in court or permits the appellant to pay it directly to the complainant, question of depositing the compensation amount in court under Rule 203 will not_ **Crl.M.C.NO.195/2012** **4** _arise. In such a case, if a memo is filed to record the payment of compensation, it could only be entered in the register of fine imposed, levied or refunded with reference to the memo submitted, with the necessary details in the remarks column with the initial of the Judge or the Magistrate concerned. Similarly, if compensation is payable under Section 357(1) of Code of Criminal Procedure and 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 applied for the same. But 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, as is the case with the sentence in C.C.785/2003, 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 filed by the complainant regarding satisfaction of the compensation, the Magistrate has to take necessary entry in Form No.20, based on that statement, as in the case of compensation payable under Section 357(3) of Code of Criminal Procedure. When the compensation directed to be paid to the complainant is not the whole fine but only part of fine, necessarily the entire fine is to be deposited before the Court. Even in such a case, if court, which sentences him specifically permits to pay that part of the fine which is to be paid as compensation, directly to the complainant, Magistrate is competent to receive the balance of fine deducting the compensation so payable and make necessary entries in Form No.20. In that case based on the statement filed by the complainant acknowledging receipt of the compensation, necessary entries of the payment of compensation and receipt are_ **Crl.M.C.NO.195/2012** **5** _to be recorded as in the case of deposit of fine and payment of compensation under Section 357(1)(b) of Code of Criminal Procedure.”_ The discussion made above on the questions involved by the Divisional Bench can be certainly taken as guidelines by the learned Magistrate how to proceed with the matter. Petitioner's case is that there was refusal to accept her application for recording the payment purported to have been effected with the complainant on the receipt produced by her. Petitioner shall move an application producing the receipt before the Magistrate within three weeks from today. If any such application is moved, the Magistrate shall conduct an enquiry over the payment of compensation purported to have been made, with notice to the complainant. Complainant, who is represented by a counsel in the proceedings undertakes that he will co-operate with the enquiry without notice from the Magistrate. 4. Parties are directed to appear before the Magistrate on 16.08.2012. Coercive steps, if any, taken against the petitioner shall be kept in abeyance for a period of two months from today, **Crl.M.C.NO.195/2012** **6** and enquiry, as indicated above, shall be completed within such period provided the parties appear and facilitate such enquiry. Crl.M.C. is disposed of. **S.S.SATHEESACHANDRAN JUDGE** prp