IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 Crl.MC.No. 3448 of 2008() ------------------------- CC.525/1999 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER: ------------ M.E. ALI, AGED 70 YEARS, S/O. IYYAMMU, PROPRIETOR, SHANI TIMBER INDUSTRIES, MUDICKAL (P.O.), PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENTS: ------------- 1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUT0OR, HIGH COURT OF KERALA, ERNAKULAM. 2. T.B. MUHAMMED, S/O. LATE BAVA KUNJU, THENNATTU HOUSE, MALIKAPEEDIKA, ALANGADU (P.O.), ERNAKULAM DISTRICT. BY P.P. SRI. AMJAD ALI. BY ADV. SRI.K.P.MAJEED FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 5/9/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 3448 of 2008 ------------------------------------------------- Dated this the 5th day of September, 2008 ORDER The petitioner has been found guilty, convicted and sentenced in a prosecution under Sec.138 of the Negotiable Instruments Act. He now faces a sentence of imprisonment till rising of court. There is a further direction to him to pay an amount of Rs.2,48,000/- as compensation under Sec.357(3) Cr.P.C. and in default, to undergo simple imprisonment for a period of six months. The matter went upto the Supreme Court. The S.L.P. was dismissed. The petitioner had been directed by this Court in the appeal to appear before the learned Magistrate on 18/7/06. He did not appear. 2. After the disposal of the case by the Supreme Court, parties have now settled their disputes. The entire amount of compensation payable under the judgment passed in the Crl.M.C. No. 3448 of 2008 -: 2 :- appeal has already been paid to the complainant. But the petitioner has not entered appearance before the learned Magistrate so far to undergo the substantive sentence of imprisonment till rising of court. 3. The petitioner is now willing to appear before the learned Magistrate. He is willing to undergo the substantive sentence of imprisonment till rising of court. Why then does he not appear? The petitioner apprehends that when he so appears notwithstanding the fact that the entire amount has been paid to the complainant and the complainant accepts and acknowledges that payment, the petitioner may still be compelled to undergo the default sentence. This apprehension is based on the fact that the payment has been made only after the dismissal of the S.L.P. by the Supreme Court and because the petitioner had not surrendered before the learned Magistrate on 18/7/06 as directed by this Court in appeal. 4. I must say that the apprehension of the petitioner is totally unjustified. The last trace of doubt on this aspect is laid to rest by the decision in Girish v. Muthoot Capital Service (P) Ltd., (2007 (1) KLT 16). The petitioner can now appear before the learned Magistrate. He must undergo the substantive sentence of imprisonment till rising of court. Thereafter, he will Crl.M.C. No. 3448 of 2008 -: 3 :- be liable to undergo the default sentence only if there is failure to pay the amount of compensation payable under Sec.357(3) Cr.P.C. If the petitioner and the complainant would appear before the learned Magistrate and report to the learned Magistrate that the compensation amount has already been paid, there can be no question of the learned Magistrate compelling the petitioner to undergo the default sentence as there will be no default, the amount having admittedly been paid by the petitioner and received by the complainant. I am, in these circumstances, satisfied that this Crl.M.C. need only be dismissed. I may hasten to observe that the learned Magistrate, if the learned Magistrate is satisfied from the submission of the parties that the compensation amount has been paid, has no jurisdiction to compel the petitioner to undergo any default sentence as there will be no default. 5. With the above observations, this Crl.M.C. is dismissed. 6. Hand over a copy of this order to the learned counsel for the petitioner. (R. BASANT, JUDGE) Nan/ Crl.M.C. No. 3448 of 2008 -: 4 :-