IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 14918 of 2010(Q) -------------------------- CC.437/2002 of CHIEF JUDICIAL MAGISTRATE COURT,PATHANAMTHITTA .................... PETITIONER(S): ------------------------- T.MOHAMMED ASHRSAF, S/O.HAJI K.ASSAINAR, 4B, LINK HEIGHTS, PANAMPILLY NAGAR, KOCHI 682 036. BY ADVS. SRI.P.B.SAHASRANAMAN, SRI.T.S.HARIKUMAR, SRI.K.JAGADEESH. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRICIPAL SECRETARY, LAW DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PROSECUTION, OFFICE OF THE DIRECTOR OF PROSECUTION, KERALA HIGH COURT , ERNAKULAM. 3. THE UNION OF INDIA, REPRESENTED BY ITS PRINCIPAL SECRETARY, HOME MINISTRY, NEW DELHI. R1 & R2 BY GOVERNMENT PLEADER SRI. S.U. NAZAR R3 BY ADV. SRI. T.P.M.IBRAHIM KHAN, ASST.SOLICITOR GENERAL OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.RAMKUMAR, J. ------------------------------------- W.P(C) No.14918 of 2010 -------------------------------------- Dated this the 18th day of May, 2010 JUDGMENT This writ petition is filed by one of the Managing Directors of a Company in liquidation. He was convicted of the offence punishable under Section 138 of the Negotiable Instrument Act 1881. As per the punishment imposed on him, he has to pay the entire cheque amount of Rs.57,97,940/- on or before 26.5.2010, which is the time granted by the Supreme Court of India, after confirming the conviction and sentence passed against the petitioner. The petitioner would have it that he has moved the President of India under Article 72 of the Constitution of India for remission of the sentence and if pending decision of the President of India, the petitioner is arrested in pursuance of the warrant of arrest by the trial court, his constitutional remedy would become frustrated. The petitioner therefore seeks a direction against the W.P(C) No.14918 of 2010 : 2 : Chief Judicial Magistrate, Pathanamthitta not to proceed with the steps in execution of the judgment in C.C No.437/2002 till disposal of Ext.P11, petition preferred by him under Article 72 of the Constitution of India. 2. I am afraid that the petitioner cannot be given the aforesaid relief merely because his petition for remission is pending before the President of India. The decision in Moideen Kutty vs. Secretary of Government 2008, 4KLT 257 squarely applies to the facts of this case. This court cannot grant any direction to the Criminal Court not to execute the sentence imposed by it merely because an application by the accused for remission of sentence is pending consideration, either before the Central Government or before the President of India. It was open to the petitioner to seek further extension of time from the Supreme Court. This writ petition is accordingly dismissed. Issue photocopy of this judgment to the W.P(C) No.14918 of 2010 : 3 : counsel for the petitioner. V.RAMKUMAR, JUDGE dmb W.P(C) No.14918 of 2010 : 4 :