IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.MC.No. 3927 of 2008() ------------------------- C.C.NO.85/2001 OF C.J.M COURT, THODUPUZHA PETITIONER(S): ACCUSED: ----------------------- ARUN THOMAS, S/O.THOMAS MATHEW, PALM COURT, THODUPUZHA KARA, THODUPUZHA VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. V.K.CHACKO, S/O.KURUVILA, VELLARINGATTU VEEDU, OLAMATTOM KARA, THODUPUZHA VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.3927 of 2008 ---------------------------------------- Dated this the 21st day of October 2008 O R D E R The petitioner has been found guilty, convicted and sentenced in a prosecution under Section 138 of the Negotiable Instruments Act. The verdict of guilty, conviction and sentence have now become final with the order dated 25/5/2006 in Crl.R.P.No.1056/2005. The petitioner now faces a sentence of imprisonment till rising of court and to pay a fine amount of Rs.2.5 lakhs. There was a direction that the fine amount must be paid within a period of six months failing which the petitioner has to undergo S.I for a period of six months. The precise direction in the order passed in revision reads as follows: “In default of payment of the fine within the above period of six months, the revision petitioner shall undergo simple imprisonment for two months as ordered by the appellate court.” 2. The period of six months has now elapsed. The petitioner has not appeared before the learned Magistrate nor has he deposited the amount in court. The petitioner has now come to this court with the prayer that the time for appearance before the learned Magistrate may be extended. He further prays that it may be noted that the entire amount of Rs.2.5 lakhs Crl.M.C.No.3927/08 2 has already been paid directly to the complainant and in these circumstances there may be a direction that the default sentence should not be executed. A receipt allegedly issued by the complainant is produced to confirm that the entire fine amount of Rs.2.5 lakhs has already been paid directly to the complainant within the stipulated period of time. In these circumstances, it is prayed that there may be a direction to ensure that the petitioner is not compelled to undergo the default sentence when he appears before the learned Magistrate now. 3. The course followed by the petitioner is obviously incorrect and unjustified. Unlike a direction for payment of compensation under Section 357(3) Cr.P.C, a direction for payment of fine must be complied with specifically by remitting the amount of fine in court. Even in the wake of a direction under Section 357(1) Cr.P.C that the entire fine amount shall be released to the complainant as compensation, the accused will not be justified in making payment of the fine amount directly to the complainant and then claim that the default sentence should not be executed. I am convinced that the procedure adopted is incorrect. 4. But the learned counsel for the petitioner prays that the interests of justice, which is paramount in petitions under Crl.M.C.No.3927/08 3 Section 482 Cr.P.C, may be taken note of. The petitioner has rightly or wrongly made payment to the complainant. The complainant admits having received the payment. Even if the entire amount were remitted in court, the court would have been obliged to hand over the entire amount to the complainant. If literal compliance with the directions were insisted, the petitioner will now have to get back the amount of Rs.2.5 lakhs from the complainant and remit the same in court which amount thereafter will be released by the court to the complainant. It would be cumbersome and if the complainant will not be able to return the amount to the petitioner, the petitioner will then be compelled to undergo the default sentence. The learned counsel for the petitioner, in these circumstances, prays that direction under Section 482 Cr.P.C may be issued to the court below not to execute the default sentence, if it is satisfied that the entire amount of fine has been paid to the complainant as compensation on 25/10/2006 as per the original of the Annexure 2. 5. Though convinced that the procedure adopted by the petitioner is incorrect and though I have no semblance of doubt that an amount of fine must certainly be remitted in court to avoid the default sentence, I do take note of the plight of the petitioner. Without intending to lay down any precedent, I am Crl.M.C.No.3927/08 4 persuaded to agree that in the peculiar facts and circumstances of this case, a direction under Section 482 Cr.P.C can and ought to be issued to save the petitioner from the trauma of undergoing the default sentence, if, as a matter of fact, the entire fine amount which is liable to be released entirely to the complainant as compensation, has already been paid to the complainant. 6. In the result, this petition is allowed in part. The following directions are issued: i) It shall be open to the petitioner/accused and the respondent/complainant to appear before the learned Magistrate and satisfy the learned Magistrate that the amount of Rs.2.5 lakhs has already been paid directly by the petitioner to the complainant under the original of Annexure 2. ii) If the learned Magistrate is satisfied of that fact, the learned Magistrate shall make necessary entries in the registers and shall not proceed to execute the default sentence. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr Crl.M.C.No.3927/08 5 Crl.M.C.No.3927/08 6 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008