IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 Crl.MC.No. 3161 of 2009() -------------------------------------- C.C. NO.307/1992 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM. ..... PETITIONER(S): ------------------------ P.SHAJI, S/O. PARAMESWARAN, PILAKKARANTAZHIKOM VEEDU, PATTATHANAM, KOLLAM (PROPRIETOR M/S. S.N.C. ELECTRONICS, POLAYATHODE, KOLLAM. BY ADV. MR.E.S.ASHRAF RESPONDENT(S): -------------------------- 1 THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MARY AGRAHAM, W/O. LATE C.ABRAHAM PHILIP, KIZHAKKADATH VEEDU, NEAR PRATHIBHA CLINIC, KADAPPAKADA, KOLLAM. R1 BY PUBLIC PROSECUTOR MR.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3161 OF 2009 ------------------------------------------ Dated 1st October 2009 O R D E R Petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. By Annexure-A2 order dated 30/8/2006 revision filed by the petitioner was disposed reducing the substantive sentence to imprisonment till rising of court and maintaining the sentence of compensation and in default, simple imprisonment for three months. According to the petitioner he had paid compensation to the deceased complainant on 16/12/2006 and obtained a receipt, but failed to appear before the court and on 10/5/2008 the complainant died and as he has already paid the compensation, he cannot be directed to undergo the default sentence. Learned counsel submitted that learned Magistrate did not accept his submission that he had paid the compensation directly to the complainant and on 22/9/2009 petitioner was sent to prison to undergo default sentence. 2. When the sentence as modified by this court to imprisonment till rising of court and compensation and compensation was paid, he cannot be CRMC 3161/09 2 directed to undergo the default sentence. 3. In view of the submission of the petitioner evidenced by the receipt issued by the deceased complainant for receipt of the compensation amount and also the affidavit filed by Mary Abraham claiming to he the widow, learned Magistrate is to be directed to consider the question whether petitioner, the accused in C.C.307/1992 has paid the compensation as claimed by him. 4. In such circumstances, if the petitioner is undergoing sentence in C.C.307/1992 on the file of Judicial First Class Magistrate-I, Kollam in (Sub Jail, Kollam) as submitted by the learned counsel, he be released forthwith with a direction to appear before the learned Magistrate on 15/10/2009 and establish that compensation was paid to the deceased complainant. Magistrate before directing petitioner to undergo the default sentence must decide whether compensation was paid to the complainant and if it was paid he shall not be directed to undergo the default sentence. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.