Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945 CRL.MC NO. 6091 OF 2023 AGAINST THE ORDER IN ST 1772/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PONNANI PETITIONER/ACCUSED: ABOOBACKER.A. AGED 65 YEARS S/O KUNHU MARAKKAR, AMASSERI HOUSE, VATTAMKULAM AMSOM, THYCAUD DESOM, PONNANI TALUK, VTTAMKULAM PO, MALAPPURAM DISTRICT, PIN - 679678. BY ADV SARATH M.S. RESPONDENTS/DE FACTO COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031. 2 CHIRUKANDATH RAMESH AGED 63 YEARS S/O KUNJIKAVU AMMA, CHIRUKANDATH HOUSE, (PO) KATTAKAMBAL, THALAPILLY TALUK, THRISSUR DISTRICT, PIN - 680544. SRI.VIPIN NARAYAN, SR. PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 6091 OF 2023 2
ORDER
The petitioner was convicted by the Judicial Magistrate of the First Class-I, Ponnani for the offence under Section 138 of the Negotiable Instruments Act and he was sentenced accordingly. His conviction was set aside by the learned Sessions Judge. The judgment rendered by the learned Sessions Judge was overturned by this Court in Crl. Appeal No.
petitioner shall undergo imprisonment till the rising of the court, and he was also ordered to pay compensation of Rs. 3,50,000/- within three months, and in default, he was ordered to undergo simple imprisonment for a period of three months. Though the judgment was challenged before the Hon’ble Supreme Court, no relief was granted.
2. The petitioner states that he was not able to appear before
the learned Magistrate and suffer the sentence as ordered or pay the compensation. It is submitted that the petitioner has managed to settle the matter by paying the amounts. However, a warrant is chasing him. The 2nd respondent has also filed an affidavit that he has no further grievance. The petitioner states that though the petitioner approached the learned Magistrate and filed an application for closing the proceedings by filing an application under Section 257 of the Cr.P.C., the learned
CRL.MC NO. 6091 OF 2023 3 Magistrate has refused to take the application on file. It is on these assertions that this petition is filed seeking to quash all further proceedings in S.T.No. 1772 of 2006 on the files of the Judicial Magistrate of First Class I, Ponnani.
3. Sri. Sarath, the learned counsel appearing for the petitioner,
would refer to the law laid down in Sajeev and Another v. State of Kerala and Another [2022 (3) KHC 69], and it is submitted that nothing stands in the way of this Court invoking the powers under Section 482 of the Cr.P.C. to quash the proceedings.
4. The learned Public Prosecutor referred to the law laid down
in Gireesh v. Muthoot Capital Service Pvt. Ltd1 and that in Subhas v. Sree Gokulam Chits and Finance Pvt. Ltd2 and it is argued that when the Superior Court grants time for payment and stipulates the date for payment, it only means and implies that the default sentence shall not be executed till that day. It is further submitted that nothing stands in the way of the trial court accepting the composition even though the time ordered by the Superior Court has expired.
5. I have heard the submissions. I find that this Court, while
allowing the appeal, had directed the petitioner to undergo imprisonment till rising of court and to pay the cheque amount by way of compensation. The above judgment has been confirmed by the Apex Court. A learned 2007 (1) KLT 16 2015 (4) KLT 497 CRL.MC NO. 6091 OF 2023 4
Single Judge of this Court in Girish (supra) has held that when the Court concerned or the Superior Court grants time for payment and stipulates a date for payment, it only means and implies that the default sentence shall not be executed till that day and action should not be taken to execute the sentence till the prescribed date and if the accused does not appear on or before that day, the Court can enforce the presence of the said accused by issuance of coercive process or by taking action against the sureties, if grounds exist. A Division Bench of this Court in Sreedharan v. Bharathan [2014 (1) KLT 236] has held that the powers under S.482 Cr PC can be invoked by filing extension/enlargement of application only on genuine and pressing reasons and the power should be invoked only when the High Court is convinced that the inability of the concerned accused to make the payment was due to reasons beyond his control. Relief should be granted only after ensuring that the same will result in the rendition of justice to both sides and will bring forth complete and final quietus on the issues between the parties. I find that in the instant case, necessary directions can be issued to the trial court to accept the composition and to permit the petitioner to comply with the directions issued by this Court. In that view of the matter, this petition is disposed of directing the petitioner to appear before the learned Magistrate within three weeks from today. Notwithstanding the time period fixed by this Court, the
CRL.MC NO. 6091 OF 2023 5 learned Magistrate shall accept the composition entered into between the petitioner and the complainant. The learned Magistrate shall also ensure that the directions issued by this Court are complied with.
Sd/- RAJA VIJAYARAGHAVAN V JUDGE Sru CRL.MC NO. 6091 OF 2023 6 APPENDIX OF CRL.MC 6091/2023 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE JUDGMENT IN CRL.APPEAL NO.1452/2010 DATED 20-02-2020 OF THE HON'BLE HIGH COURT OF KERALA. Annexure-A2 ORIGINAL OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED 9-6-2023. Annexure A3 TRUE COPY OF THE SECTION 257 PETITION BY THE
2ND RESPONDENT IN S.T. NO.1772/2006 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1, PONNANI DATED 7.6.2023. Annexure-A4 TRUE COPY OF THE TREATMENT RECORD OF THE PETITIONER DATED 1.9.2021 (REGISTRATION NO.82/21) ISSUED FROM SAMAGRA HOMECARE SYSTEM, VATTAMKULAM GRAMA PANCHAYATH.