V.RADHAKRISHNAN v. P.THANKARAJ AND STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 27TH DAY OF OCTOBER 2014/5TH KARTHIKA, 1936 Crl.MC.No. 1448 of 2012 () --------------------------- PETITIONER(S)/ACCUSED: ----------------------------- V.RADHAKRISHNAN, AGED 65 YEARS S/O.VASU, PUDUMA READYMADES, CROWN BUILDINGS OLAVAKKODE, PALAKKAD. BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN ## RESPONDENT(S)/COMPLAINANT AND STATE: -------------------------------------------------- ## 1.P.THANKARAJ S/O.PAZHANIYAPPAN, PROPRIETOR PAZHANIYAPPA CHITS & FINANCE, K.P.D. BUILDING OLAVAKKODE, PALAKKAD. ## 2.STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.V.A.JASMINE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C.1448/12 ## APPENDIX PETITIONER'S EXHIBITS : ANNEXURE A1- TRUE COPY OF THE ORDER DATED 20.10.2010 IN CRL.R.P.NO.3014/2010 PASSED BY THIS HON'BLE COURT. ANNEXURE A2- TRUE COPY OF THE RECEIPT DATED 30.12.2010 ISSUED BY THE IST RESPONDENT TO THE PETITIONER. ANNEXURE A3- TRUE COPY OF THE ORDER DATED 21.01.2011 IN CMP.142/11 IN S.T.NO.3033/07 ON THE FILE OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE III, PALAKKAD. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== Crl.M.C. No.1448 OF 2012 ==========================** Dated this the 27[th] day of October, 2014 ## **ORDER** Petitioner, the accused in S.T.No.3033 of 2007 on the files of the Court of Judicial First Class Magistrate-III, Palakkad was convicted and sentenced for an offence under section 138 of the Negotiable Instruments Act. He unsuccessfully attempted an appeal as Crl.A.No.711 of 2008 before the Court of Additional Sessions Judge-II, Palakkad and thereafter, moved Crl.R.P.No.3014 of 2010 before this Court. Annexure-A1 is the order passed therein. As per Annexure-A1 order, the said revision petition was disposed of confirming the conviction and enhancing the fine amount from `1,31,000 to `1,41,700. The petitioner herein/revision petitioner was also directed to deposit the said amount of fine in the trial court within the time stipulated therein and in case of failure to deposit the said amount, he was directed to undergo simple imprisonment for a period of three months. On realisation of the amount of fine, a sum of **Crl.M.C.1448/2012** 2 `1,38,000 was directed to be paid to the complainant as compensation under section 357(1)(b) Cr.P.C and the remaining amount was directed to be deposited in the State Exchequer. In case of failure on the part of the revision petitioner to deposit the fine amount, the trial court was directed to take coercive steps to execute the sentence and to secure his presence and to realise the fine amount. The case of the petitioner is that a post revisional composition was entered into between the petitioner and the complainant (first respondent herein) and as is evident from Annexure-A2, an amount of `1,38,000 which was directed to be paid to the first respondent as per Annexure-A1 order from the amount deposited in court, was directly paid to the first respondent instead of depositing the said amount in the court. The petitioner filed CMP No.142 of 2011 permitting him to deposit the balance amount payable with the State Exchequer to the trial court in tune with the direction in Annexure-A1 order. The trial court found that in the light of Annexure-A1 order, the petitioner herein was to deposit the entire amount of `141700 before the court and the **Crl.M.C.1448/2012** 3 payment of `1,38,000 could have been effected after the deposit of the entire amount before the court. The trial court ultimately dismissed CMP No.142 of 2011 as per Annexure-A3 and thereby refused to allow the petitioner to deposit the balance amount in court in order to comply with Annexure-A1 order. It is the said order that is under challenge in this Crl.M.C. 2. Though notice was issued to the first respondent in this proceedings, the first respondent did not enter appearance to resist the case. Though fresh steps were taken for the purpose of serving notice to first respondent, service could not be completed thereafter. Later, notice was sent to the first respondent through C.I of Police, Palakkad and it was duly served on the first respondent. The question whether a post revisional composition entered into between the petitioner and complainant could be acted upon was considered in the decision in _**Beena v. Balakrishnan Nair**_ **[2010(2) KLT 1017]** relying on a decision rendered by a learned Single Judge of Gujarat High Court in **Crl.M.C.1448/2012** 4 _**Kripal Singh v. Balvinder**_ **(2004 Cr.L.J. 3786)** and also taking note of the Division Bench decision of this Court in _**Sudheer Kumar v. Kunhiraman**_ **[2008 (1) KLT 168].** It was found that after disposal of the revision petition on merits ignoring the payment under section 362 Cr.P.C a compensation under section 147 of the NI Act could not be accepted by the High Court and record acquittal of the petitioner. Even after holding so, taking into account the fact that the petitioners therein had already paid the amount payable to the complainant therein and production of a document revealing the said factum before this court, the revision petition was disposed of by this court in **Beena'** s case (supra). It was held that the proper procedure was to deposit the fine amount in the court concerned so that the court could effect payment of the amount directed to be paid as compensation to the complainant as provided under section 357(1)(b) of the Cr.P.C., after making necessary entries in the fine register to that court. Further this Court in **Beena** 's cae (supra), taking note of the fact that the petitioners therein paid the amount to the complainant therein to **Crl.M.C.1448/2012** 5 satisfy the order in the revision petition directed the learned Magistrate to acknowledge the receipt of the amount of fine. It was held that in case of filing of such a statement, to accept the same as sufficient compliance with the directions in the order in revision petition and to make necessary entries in the fine register as if it is realised and paid to the concerned complainant and close the matter. Having heard the learned counsel for the petitioner and the learned Public Prosecutor and taking into account the aforesaid decision, I am inclined to dispose of this petition as hereunder:- The learned Magistrate is directed to acknowledge the receipt of fine ordered to be paid as per Annexure-A1 order in Crl.R.P.No.3014 of 2010 in case the first respondent herein, the complainant in S.T.No.3033 of 2007 files a statement within a period of six weeks from today before the Court of Judicial First Class Magistrate-III, Palakkad acknowledging the receipt of amount of fine viz., `1,38,000 directed to be paid as per Annexure-A1 order. In such eventuality, it **Crl.M.C.1448/2012** 6 has to be treated as sufficient compliance with the directions thereunder and appropriate entries shall be made in the fine register as if the fine is realised and paid to the first respondent, complainant. The petitioner shall then, be permitted to remit the balance amount by virtue of Annexure-A1 order before the court and after making proper entry in the fine register, the said amount shall be deposited in the State Exchequer to comply with the directions in Annexure A1 order, in accordance with law. In case of compliance with the aforesaid directions, the matter can be closed. In order to enable the petitioner to comply with the directions, Annexure-A3 is set aside. Warrant of arrest, if any, issued against the petitioner shall be kept in abeyance during the aforementioned period or till a statement is filed in the trial court and consequential deposit of the balance amount and necessary entry in the fine register is made, within the above stipulated period. Disposed of accordingly. **Sd/(JUDGE)** **C.T. RAVIKUMAR** ## **spc/** **Crl.M.C.1448/2012** 7 **C.T. RAVIKUMAR, J.** **Crl.M.C.1448/2012** 8 **JUDGMENT September, 2010**