IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 Crl.MC.No. 420 of 2011() ----------------------------------- C.C.NO. 331/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... PETITIONER(S): ACCUSED NO.1 ------------------------------------------------ MRS DEEPA SIVADAS, W/O.SIVADASAN, TATA PIPE LINE ROAD, ERNAKULAM NORTH, ERNAKULAM. BY ADV. SRI.M.B.PRAJITH RESPONDENT(S): COMPLAINANT ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031. 2. K.M.A.RAHIM, S/O.THARIKKUTTY HAJI, LAKSHMINARAYAN ENCLAVE, KIZHAKKUMPATTUKARA P.O., THRISSUR EAST, PIN 680 009. R1 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.420 of 2011 --------------------------------------- Dated this 17th day of February, 2011 ORDER Petitioner is accused in C.C.No.331 of 2007 of the court of learned Judicial First Class Magistrate-I, Thrissur and stands convicted for offence punishable under Sec.138 of the Negotiable Instruments Act, allegedly on a plea of guilty made by the petitioner. Instead of sentencing him forthwith, he was released on admonition under Sec.3 of the Probation of Offenders Act (for short, "the Act”). There was also a direction for payment of compensation under Sec.5(i)(a) of the said Act. That conviction, admonition and direction for payment of compensation are challenged in this proceeding. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. Learned counsel submitted that the order under Sec.3 of the Act has been passed disregarding the decision in Nalinakshan M.V Vs. M. Rameshan and Anr. (2009(1) KHC 561). It is argued by learned counsel that in the absence of a sentence of imprisonment there could not be any direction for payment of compensation. Learned Public Prosecutor pointed out that necessity to impose sentence of imprisonment while awarding Crl.M.C.No.420 of 2011 -: 2 :- compensation arises only when compensation is awarded under Sec.357(3) of the Code of Criminal Procedure and not when the offender is released under Secs.3 or 4 of the Act where the Magistrate is empowered to award compensation under Sec.5(i) (a) of the Act. 3. It appears to me that I need not go into the said contentions in this proceeding since the remedy available to the petitioner, in case he is challenging release on admonition and awarding of compensation is to prefer appeal to the court to which ordinary appeal would lie from the judgment of the Magistrate under Sec.11(2) of the Act as held by this court in State of Kerala Vs. Khader (1974 KLT 129) and State of Kerala Vs. Damodaran (1974 KLT 281). Assuming that petitioner is challenging the very fact of conviction on the premise that there was no plea of guilty, petitioner has to challenge conviction on that ground, also before the appropriate Court. Petitioner cannot rush to this Court with a petition under Sec.482 of the Code when a statutory remedy is available. 4. It is pointed out by learned counsel that time for filing the appeal has run out. In that case Sec.5 of the Limitation Act provides for condonation of delay. It is directed that in case an Crl.M.C.No.420 of 2011 -: 3 :- appeal is filed, the time during which this proceeding was pending in this Court, (09.02.2011-17.02.2011) shall be excluded while reckoning the period of limitation. (THOMAS P JOSEPH, JUDGE) Sbna/-