Sivasankaran Nair v. State of Kerala and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
Judgment Date: 2007-08-06
Court Decision / Holding: Crl.M.C. allowed. The petitioner shall forthwith be released from custody as he does not deserve to undergo the default sentence any longer. The registry shall communicate this order to the prison authorities who are detaining the petitioner to effect immediate release. The copy of this order should be given to the learned counsel for the petitioner today itself.
Final Disposition: Criminal Miscellaneous Case allowed; petitioner to be released forthwith; prison authorities to release; copy to counsel.

Parties to the Case

Appellants / Petitioners

Sivasankaran Nair

Respondents

The State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
The Superintendent, Special Sub Jail, Alappuzha
K. Thankappan

Legal Representation & Advocates

Counsels for Petitioners

• Sri R. Rajasekharan Pillai
• Sabina Jayan

Counsels for Respondents

• Public Prosecutor Sri M.S. Breez

Case Synopsis & Summary

This Criminal Miscellaneous Case challenges an order of the Judicial Magistrate, Kayamkulam, in CMP 7114/2007 in ST.1770/1998, concerning withdrawal of a complaint filed under Section 138 of the Negotiable Instruments Act. The petitioner, Sivasankaran Nair, was convicted and later acquitted with a sentence including imprisonment till rising of the court and a compensation of Rs. 80,000 with a default term of one month. He did not pay the compensation by the stipulated date, was arrested on 31 July 2007 to serve the default sentence, and was lodged in custody. Subsequently, relatives of the accused alleged that the entire liability had been discharged by them, and the complainant sought withdrawal of the case. The Magistrate rejected the withdrawal application. The petitioner contends that once the liability was discharged, the default sentence should end and the accused should be released; there was no express deposit order, only a direction to pay. He cites Girish v. Muthoot Capital Service (P) Ltd. to emphasize that default imprisonment ceases when payment or deposit is made. The High Court finds merit in the challenge, holds that the discharge requires release from custody, and allows the Crl.M.C., ordering immediate release and directing communication to prison authorities. The decision clarifies that continued detention is unjust when discharge has occurred.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that once the complainant admitted that the entire liability was discharged by the relatives of the accused, the Magistrate should have ordered immediate release of the petitioner from custody. There is no deposit directive, only a general obligation to pay. If payment or deposit is made, the default sentence must end; the Magistrate failed to consider Girish v. Muthoot Capital Service (P) Ltd. and erred in dismissing the withdrawal. The result is unnecessary detention of a man who has fulfilled the liability.

Contentions of Respondents

The respondents submit that the order under challenge concerns withdrawal and the application of the default sentence; the complainant’s withdrawal is distinct from discharge of liability; the Magistrate’s order should stand and the existing liability may require compliance or restitution; the court must consider the record and NI Act requirements before premature release.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Girish v. Muthoot Capital Service (P) Ltd.	2007(1) KLT 16	Positive	Cited to support the proposition that default imprisonment under Section 138 NI Act ends once the liability is discharged by payment/deposit; the current judgment relies on this principle to direct release upon discharge.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 6TH AUGUST 2007 / 15TH SRAVANA 1929 Crl.MC.No. 2519 of 2007() ------------------------AGAINST THE ORDER DATED 04/08/2007 IN CMP 7114/2007 IN ST.1770/1998 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... ## PETITIONER/RESPONDENT/ACCUSED: ----------------------------------------- SIVASANKARAN NAIR, RESIDING AT NEELETHU HOUSE, NADAKKAVU MURI, PERINGALA VILLAGE, KAYAMKULAM (IN PRISON) BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN ## RESPONDENT/PETITIONER/COMPLAINANT: ---------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. THE SUPERINTENDENT, SPECIAL SUB JAIL, ALAPPUZHA. 3. K.THANKAPPAN, RESIDING AT KUTTIYIL THEKKETHIL VEEDU, EREZHA THEKKUM MURI, PERINGALA VILLAGE, MAVELIKKARA TALUK. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/08/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.2519 of 2007 ---------------------------------------Dated this the 6[th] day of August 2007 ## **O R D E R** The petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act. He has been found guilty, acquitted and sentenced. But the verdict of guilty, conviction and sentence have now become final. The petitioner was sentenced to undergo imprisonment till rising of court. There was a further direction “to pay” an amount of Rs.80,000/as compensation and in default to undergo S.I for a period of one month. The petitioner was granted time till 25/7/2006 to appear before the learned Magistrate and to pay the compensation amount. The petitioner did not appear before the learned Magistrate. At long last, the accused was apprehended on 31/7/2007. The court sent the accused to prison to execute the default sentence passed against him. Subsequently the relatives of the accused had allegedly approached the complainant and discharged the amount due. Whereupon, the complainant went before the learned Magistrate and reported that the liability has Crl.M.C.No.2519/07 2 been discharged by the relatives of the accused. It is further reported that the complainant “is not intending to proceed with the case”. Permission was hence sought “to withdraw the above complaint”. The learned Magistrate, by the impugned order, rejected the application. Aggrieved by the rejection of the application, the petitioner, who is undergoing imprisonment in default, has approached this court with this Criminal Miscellaneous Case. 2. The learned counsel for the petitioner submits that the complainant having unambiguously admitted before the learned Magistrate that the entire liability to pay compensation has been discharged by the relatives of the accused, the learned Magistrate must certainly have directed immediate release of the petitioner from custody. Default sentence can be executed and can remain only till the payment is made. In the instant case, there was no specific direction to deposit the amount. The direction was only “to pay” the compensation amount to the complainant. If there is default in payment, there can be a sentence of default. The moment, the direction is complied with either by deposit of the amount or by direct payment to the Crl.M.C.No.2519/07 3 complainant, the default sentence cannot continue to run. The position is made clear in Girish v. Muthoot Capital Service (P) Ltd. [2007(1) KLT 16]. The learned Magistrate has not adverted to that aspect of the matter at all. But inasmuch as the complainant has wrongly and inelegantly claimed the relief of withdrawal of the case, the learned Magistrate has dismissed the complaint. 3. I am certainly of the opinion that the impugned order cannot be justified. The complainant has unambiguously admitted before the learned Magistrate that the liability has been discharged by the relatives of the accused, who approached the complainant. Having recorded that the complainant has admitted before court that the liability has been discharged, the only course open to the learned Magistrate was to pass appropriate orders to release the accused from custody forthwith. Resultantly, the accused is unnecessarily languishing in custody notwithstanding the discharge of the liability to pay compensation. He deserves to be set at liberty immediately. Crl.M.C.No.2519/07 4 4. In the result: - a) This Criminal Miscellaneous Case is allowed. b) The petitioner shall forthwith be released from custody as he does not deserve to undergo the default sentence any longer. c) The registry shall forthwith communicate this order to the prison authorities who are detaining the petitioner who shall immediately release him from custody. Hand over copy of this order to the learned counsel for the petitioner today itself. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.2519/07 5 Crl.M.C.No.2519/07 6 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007