IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.MC.No. 3665 of 2008() ------------------------- CC.30/2002 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .................... PETITIONER/ACCUSED --------------- PETER.V.J., S/O.JOSEPH, VALIYAPARAMBIL, ODAVALLY, CHEPPARAPADAVU.P.O., KANNUR DIST. BY ADV. SRI.C.A.JOSEPH RESPONDENT/COMPLAINANT & STATE: --------------- 1. DEVASIA, MANGALATHUKEROTTU, VENKUNNU, PULIKURUMBA, TALIPARAMBA, KANNUR DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR , HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.K.MOIDEEN FOR R1 PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.3665 of 2008 ------------------------------------- Dated this the 30th day of September, 2008 ORDER Petitioner has been found guilty, convicted and sentenced in a prosecution under Section 138 of the Negotiable Instruments Act. Trial Court sentenced the accused to undergo imprisonment for a period of one year. In appeal, the conviction was upheld. But the sentence was modified. The petitioner was sentenced to undergo imprisonment till rising of court and to pay an amount of Rs.60,000/- as compensation and in default to undergo S.I for a period of 3 months. In fact the operative portion of the appellate judgment reads as follows: “Sentence is modified to imprisonment till rising of court and to pay compensation of Rs.60,000/- and in default of payment of fine to undergo S.I for a period of 3 months.” The accused was directed to appear before the Magistrate on 17.11.07. 2. The accused came before this Court in revision and another Bench of this Court as per order dated 15.11.07 in Crl.R.P.No.4066 of 2007 upheld the concurrent verdict of guilty and conviction. The sentence was further modified to one of fine Crl.M.C. No.3665 of 2008 2 of Rs.60,000/- and in default to undergo S.I for a period of 3 months. 4 months' time was given for making payment. It was directed that if the amount is deposited, the same shall be paid to the 1st respondent/complainant as compensation under Section 357(1) Cr.P.C. 3. According to the petitioner, he has paid the entire amount of Rs.60,000/- to the complainant. The complainant has appeared before this Court through a counsel and the counsel asserts that the payment has been received. But the learned Magistrate is refusing to accept such payment and is insisting that the amount must be deposited in court, failing which the default sentence will have to be executed against the petitioner. 4. The learned counsel for the petitioner submits that the amount of Rs.60,000/- has been paid bona fide to the complainant. This was in the light of the confusion regarding the nature of the payment that was to be made and the manner in which it was to be paid. It is a fact that payment has been made to the complainant. But it now turns down that direct payment made to the complainant is incorrect. The amount should have been remitted before the court below as the direction is to pay the fine amount and only from the court it could have been Crl.M.C. No.3665 of 2008 3 released to the complainant. Both counsel submit that if literal compliance were now insisted, it would cause great hardship, inconvenience and loss as the complainant is not able to raise the amount of Rs.60,000/- to remit in court. In these circumstances, the payment of the amount made directly to the complainant may be accepted as sufficient compliance of the direction for payment of fine. At any rate, such amount when paid, is only to be released to the complainant, it is submitted. 5. The course adopted by the petitioner is obviously incorrect. In the light of the order passed in revision by this Court, the petitioner could not have made the payment directly to the complainant notwithstanding the fact that amount when deposited would have been liable to be released entirely to the complainant by the court. But notwithstanding the inadequacy in adhering to the correct and ideal procedure, considering the fact that it is asserted before me that the complainant has received the entire amount, I am satisfied that appropriate directions can be issued in the interests of justice and to avoid needless harassment and inconvenience to all concerned, without intending to lay down any precedent. 6. In the result: a) This Crl.M.C is allowed; Crl.M.C. No.3665 of 2008 4 b) The following directions are issued without intending to lay down any precedent: i) The petitioner/accused and the respondent/complainant shall appear before the learned Magistrate on 13.10.08. They shall confirm to the learned Magistrate by filing appropriate joint statement/voucher that the entire amount of Rs.60,000/- has already been paid directly by the accused to the complainant and that the complainant has received the same in full satisfaction of the direction issued under Section 357(1) Cr.P.C. ii) If the learned Magistrate is so satisfied about the payment, the learned Magistrate shall not and need not proceed to execute the default sentence. Necessary entries shall be made in the records and further steps for execution of the sentence shall be given up. 7. Hand over a copy of this order to the learned counsel for the petitioner for production before the learned Magistrate. (R.BASANT, JUDGE) rtr/-