Manoj Unnithan Vs. State of Kerala - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN SATURDAY, THE31T DAY OF MAY201410TH JYAISHTA, 1936 Crl.MC.No. 2920 of 2014 () --------------------------- AGAINST THE ORDER

IN Crl.Rev.Pet 2444/2009 of HIGH COURT OF KERALA DATED3007-2009 AGAINST THE JUDGMENT

IN ST3072006 of JUDICIAL FIRST CLASS MAGISTRATE - II, HARIPAD PETITIONER(S)/REVISION PETITIONER/ACCUSED: ------------------------------------------- MANOJ UNNITHAN AGED43YEARS S/O.MADHAVAN UNNITHAN, THRIVENIYIL HOUSE INDIRA BHAVANAM, THULAMPARAMBU, NADUVATHUM MURI HARIPAD VILLAGE, KARTHIKAPPILLY TALUK. BY ADVS.SRI.P.G.SURESH SRI.G.SUDHEER (THURAVOOR) RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.

2. SATHIAMMA, AGED59YEARS W/O.LATE CHANDRASEKHARAPILLAI, SATHIBHAVANAM THULAMPARAMBU, NADUVATHUM MURI, HARIPAD VILLAGE KARTHIKAPPILLY TALUK. R2 BY ADV. SRI.SUNIL NAIR PALAKKAT BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON3105-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2920 of 2014 () APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1 : THE TRUE COPY OF THE ORDER

OF THIS HONOURABLE COURT DATED3007.2009 IN Cr.R.P NO.2444/2009 ANNEXURE A2 : THE TRUE COPY OF THE AFFIDAVIT ISSUED BY THE COMPLAINANT ACKNOWLEDGING THE RECEIPT OF THE AMOUNT STATED IN THE ORDER

OF THIS HONOURABLE COURT IN Cr.R.P NO.2444/2009. RESPONDENT'S ANNEXURES: NIL Sd/- K.RAMAKRISHNAN,JUDGE //true copy// P.A TO JUDGE K.RAMAKRISHNAN, J.

------------------------------------------------ Crl.M.C.No.2920 of 2014 ------------------------------------------------- Dated this the 31st day of May, 2014 ORDER

This is an application filed by the petitioner seeking direction to be given to the Magistrate u/s 482 of the Code of Criminal Procedure.

2. It is alleged in the petition that the petitioner is the accused in S.T No.307/2006 on the file of Judicial First Class Magistrate Court, Haripad, which was taken on file on the basis of a private complaint filed by the second respondent alleging offence u/s 138 of the negotiable Instruments Act, (hereinafter referred to as 'the Act'). After trial, the learned Magistrate found the petitioner guilty u/s 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for one month and also to pay Rs.90,000/- as compensation to the complainant and in default to undergo simple imprisonment for Crl.M.C No.2920/2014 2 three months. Aggrieved by the same, petitioner filed Criminal Appeal No.358/2007 and the same was dismissed by the Additional Sessions Court - I, Mavelikkara confirming the order of conviction and sentence passed by the court below. The petitioner filed Criminal Revision No.2444/2009 before this court and this court confirmed the order of conviction and direction to pay compensation and default sentence but reduced the substantive sentence to imprisonment till rising of the court from one month, imposed by the court below as per Judgment dated 30.07.2009 and time was granted till 30.12.2009 to deposit the amount and serve the sentence and it is also mentioned in the order that if the amount is directly paid to the complainant and the complainant through his counsel convinced the lower court regarding the payment, then, that will be treated as sufficient compliance of the order of payment of compensation. But, the petitioner could not pay the amount within time. But, it was paid on the next day as per Crl.M.C No.2920/2014 3 Annexure A2. But, unless time is extended and direction is given to the court below, he may not be able to surrender to receive the substantive sentence. So, he has no other remedy except to approach this court seeking the following reliefs: i) Direct the Hon'ble Judicial First Class Magistrate Court, Haripad to accept the statement of acknowledgement of receipt of money as sufficient compliance of the direction of the order of this Hon'ble Court in the Crl.R.P No.2444/2009 dated 30.07.2009 and ii) Direct the Hon'ble Judicial First Class Magistrate Court, Haripad to withdraw the warrant issued against the petitioner in connection with this matter and close the matter accordingly, for the ends of justice.

3. Second respondent appeared through counsel and submitted that the amount ordered to be paid as compensation has been paid.

4. The application was opposed by the Public Prosecutor on the ground that petition has come long after disposal of the case. Crl.M.C No.2920/2014 4 5. It is an admitted fact that the second respondent herein had filed a complaint u/s 138 of the Act and that was ended in conviction as per the judgment of Judicial First Class Magistrate - II, Haripad in S.T No.307/2006. The trial court sentenced the petitioner to undergo simple imprisonment for one month and also to pay a compensation of Rs.90,000/- in default to undergo simple imprisonment for three months u/s 357(3) of Code of Criminal Procedure. Though an appeal was filed as Criminal Appeal No.358/2007, the Additional Sessions Judge - I, Mavelikkara dismissed the appeal against which petitioner preferred Criminal Revision Petition No.2444/2009 before this court and this court vide Annexure A1 judgment allowed revision in part confirming the order of conviction and direction to pay compensation with default sentence as done by the trial court and confirmed by the appellate court, but, reducing the substantive sentence to imprisonment till rising of the court from one month Crl.M.C No.2920/2014 5 imposed by the court below. Time was given till 30.12.2009 to pay the amount as well. It is also mentioned in the judgment that if the amount is paid within the time mentioned above directly to the complainant and if the complainant appears through his counsel before the lower court and produces the receipt for payment of the amount, then the trial court is directed to treat that as sufficient compliance of payment of compensation as directed in the judgment. In this case the amount was not paid within the time stipulated in Annexure A1 but it is seen from Annexure A2 affidavit that the amount was paid on 31.12.2009 but he did not surrender before the court as he apprehended that since the amount was paid beyond the time, the trial court will not accept the same.

6. In the decision reported in Beena Vs Balakrishnan Nair and Another (2010(2) KLT1017 a single bench of this court has held that in case of fine, if directed to be paid as compensation out of fine, and if the compensation was directly Crl.M.C No.2920/2014 6 paid to the party instead of depositing the fine amount before the court below, then, if it is satisfied, the court can record the payment in the fine register and adjust the same as deposit of fine as disbursement of the amount as compensation as directed in the order. The same view has been taken by a division bench of this court in Sivankutty Vs John Thomas and Another (2012(4) KLT21. In that case the question arose as to whether the petition can be considered u/s 482 of the Code of Criminal Procedure to give a direction to receive the acknowledgment of payment directly to the party and this court has held that if fine was imposed and compensation out of the same was directed to be paid to the party, then, if the amount is paid directly, then that can be considered as sufficient compliance of the direction to pay fine as well and in such cases the Magistrate can record the payment, on satisfaction, in the fine register by making necessary entries as required in law. In this case also the petitioner had paid the amount directly to the Crl.M.C No.2920/2014 7 complainant. Further, it was so directed in Annexure A1 judgment also that if amount is directly paid to the complainant and the complainant appears through counsel in the lower court and produces receipt acknowledging the payment, then, that can be treated by court below as sufficient compliance. In view of the above dictum laid down in the above decision, this court feel that the petition can be disposed of as follows: The petitioner and second respondent are directed to appear before the court below on or before 25.06.2014 and if the second respondent produces the receipt acknowledging the payment of compensation as directed by this court through his counsel, then, the learned Magistrate is directed to treat that as sufficient compliance of payment as directed in Annexure A1 order of this court and make necessary entries in the fine register regarding the same as directed in Beena Vs Balakrishnan Nair and Sivankutty Vs John Thomas and Another cited supra, then Crl.M.C No.2920/2014 8 permit the petitioner to undergo imprisonment till rising of the court as directed in the judgment of this court in the revision. If the petitioner did not comply with this, then, the lower court is at liberty to proceed with the warrant, if any, issued to execute the conviction. Till then, lower court is directed to keep the coercive steps, if any, initiated against the petitioner in abeyance. Office is directed to communicate this order to the court concerned immediately for necessary further action. K.RAMAKRISHNAN, JUDGE vdv