Kerala High Court
Rajeswary vs State Of Kerala on 28 December, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 28TH DAY OF DECEMBER 2021 / 7TH POUSHA, 1943
CRL.MC NO. 6699 OF 2021
AGAINST THE ORDER DATED 27.10.2021 IN CMP NO.315/2021 IN CC
NO.340/2014 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST
CLASS -III, ERNAKULAM
PETITIONER/CONVICT:
RAJESWARY,AGED 55 YEARS,W/O. DEEPAN,
C-27 FACT TOWNSHIP, UDYOGAMANDAL P.O., ELOOR,
COCHIN-683 501, ERNAKULAM.
BY ADVS.
V.JOHN SEBASTIAN RALPH
K.J.JOSEPH (ERNAKULAM)
VISHNU CHANDRAN
RALPH RETI JOHN
APPU BABU
SHIFNA MUHAMMED SHUKKUR
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR ,
HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31.
2 USHA POULOSE,W/O. POULOSE, IKKARASSERY,
MANDIRAM ROAD, AYYAPPANKAVU, COCHIN-682018,
ERNAKULAM.
R1 BY PUBLIC PROSECUTOR SMT.S.REKHA
R2 BY ADV C.ANILKUMAR (KALLESSERIL)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 28.12.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.MC No.6699 of 2021 2
VIJU ABRAHAM,J.
........................................................
Crl.M.C. No.6699 of 2021
........................................................
Dated this the 28th day of December, 2021
ORDER
The above Crl.M.C is filed by the petitioner who is an accused
in C.C.No.340 of 2014 on the file of the Judicial First Class Magistrate
Court-III, Ernakulam, for offence punishable under Section 138 of the
Negotiable Instruments Act, 1881. The trial court as per Annexure-A2
judgment convicted and sentenced the petitioner to undergo simple
imprisonment for a period of one year and to pay a fine of Rs.7,17,000/-
with a default clause of three months. The appeal filed by the petitioner as
Crl.Appeal No.148 of 2017 on the file of the Additional Sessions Court-V,
Ernakulam was dismissed as per Annexure-A3 judgment. The Criminal
Revision Petition filed by the petitioner as Crl.R.P.No.41 of 2020 was
disposed of as per Annexure-A4 order by affirming the conviction but
modifying the sentence of simple imprisonment for one year as a sentence
to pay fine of Rs.7,17,000/- and in default of payment of fine, to undergo
simple imprisonment for a period of three months. The petitioner/accused
was granted a period of six months to remit the amount of fine in the trial
court.
2. Pursuant to the said order, the petitioner paid the entire
amount of compensation/fine to the complainant/2nd respondent herein
and a receipt was also issued by the complainant acknowledging the
payment. The said receipt was produced before the trial court and the
petitioner filed C.M.P.No.315 of 2021 before the trial court to close the
case and to recall the non bailable warrant pending against the petitioner
since the entire compensation has been paid to the complainant. But, the
said petition was dismissed by the trial court as per Annexure-A1 order
holding that since the direction in Annexure-A4 order of this Court was to
remit the amount of fine in the trial court and since the petitioner has
directly paid the amount to the complainant, the court is not in a position to
accept the receipt of acknowledgement of money issued by the
complainant. It is challenging Annexure-A1 order passed in C.M.P.No.315
of 2021 in C.C.No.340 of 2014 that the present case is filed. In support of
the contention the petitioner relies on the judgment of this Court in
Sivankutty v. John Thomas (2012(4) KLT 21).
3. Heard the learned counsel appearing for the petitioner and
the 2nd respondent as well as the learned Public Prosecutor appearing for
the 1st respondent.
4. It is the case of the petitioner that even though in Annexure-
A4 order the petitioner was directed to remit the amount of fine in the trial
court, she has paid the amount directly to the complainant who is the 2 nd
respondent herein.
5. The learned counsel appearing for the 2nd respondent
submitted that she has received the entire amount of compensation and
has also issued a receipt acknowledging reception of the amount. Further
that, the 2nd respondent has also filed an affidavit before this Court as
Annexure-A5 stating that she has received the entire amount of
compensation and a receipt has been issued by her.
6. This Court has occasion to consider a similar issue in Beena
v. Balakrishnan (2010 (2) KLT 1017) and held as follows:
"5. That however, cannot be the end of the
matter so far as grievance of petitioners is concerned.
According to the petitioners they have already paid
amount payable to respondent No.1. That is revealed
from petitions filed by them in this Court. True, by the
final orders disposing of Revision Petitions this Court
while modifying the sentence as simple imprisonment till
rising of the court sentenced petitioners to payment of
fine which is to be deposited in the court concerned and
directed that fine if realised will be paid to respondent
No.1 under S.357(1)(b) of the Code. The proper
procedure for petitioners was to deposit fine in the court
concerned so that such court would pay the said amount
to respondent No.1 as provided under S.357(1)(b) of the
Code after making necessary entries in the fine register
of that court. Now that petitioners have paid the amount
to respondent No.1 to their satisfaction, what is required
is only to make necessary entries in the fine register that
amount of fine is realised and paid to respondent No.1.
In the particular facts and circumstances of these cases I
direct the learned Magistrate that if respondent No.1 filed
a statement within one month from this day in the court
concerned through his counsel in that court
acknowledging receipt of amount of fine ordered to be
paid as per final order disposing of the Revision
Petitions, learned Magistrate will accept that as sufficient
compliance of direction contained in the orders disposing
of the Revision Petitions and make necessary entries in
the fine register as if fine is realised and paid to
respondent No.1 and close the matter accordingly. The
warrant of arrest if any issued against petitioners will
stand in abeyance during the said period of one month
or statement is filed in the court concerned and
necessary entry in the fine register is made, whichever is
earlier."
Doubting the correctness of the decision cited supra, a reference was
made by this Court which culminated in the judgment in Sivankutty's case
(supra) which is relied on by the petitioner in support of her contention. In
Sivankutty's case (supra) this Court found that there is no error or defect
in the direction given in Beena's case (supra) and held thus:
".............. But if the Court permits payment of fine as
compensation to the complainant directly, it enables
the accused to pay the entire fine as compensation
directly to the complainant, as is the case with the
sentence in C.C.785/2003, the Magistrate cannot insist
that fine is to be paid in Court and it cannot be paid
directly to the complainant and is to be paid to the
complainant only after making necessary entries in
Form No.20. In such a case when the statement is
filed by the complainant regarding satisfaction of the
compensation, the Magistrate has to make necessary
entry in Form No.20, based on that statement, as in
the case of compensation payable under S.357(3) of
Code of Criminal Procedure. ..........."
7. Admittedly, there is substantial compliance of the direction
issued by this Court in Annexure-A4 order in as much as the total amount
of fine was directed to be paid as compensation to the complainant and in
fact the complainant has received the amount also. An affidavit endorsing
the said fact was also placed before this Court by the 2 nd respondent. In
view of the above said facts and circumstances, in the interest of justice I
set aside Annexure-A1 order in C.M.P.No.315 of 2021 in C.C.No.340 of
2014 and direct the court below to make necessary entry in the fine
register recording the factum of settlement between the parties, as if fine
is realised and paid to the complainant.
With the abovesaid direction, the above case is disposed of.
Sd/-
VIJU ABRAHAM
Judge
cks
APPENDIX OF CRL.MC 6699/2021
PETITIONER ANNEXURES
Annexure 1 CERTIFIED COPY OF THE ORDER DATED
27.10.2021 IN C.M.P. NO. 315/2021 IN CC
NO. 340/2014 ON THE FILE OF JUDICIAL
FIRST CLASS MAGISTRATE COURT -III
ERNAKULAM.
Annexure 2 TRUE COPY OF THE JUDGMENT DATED
17.04.2017 IN C.C. 340/2014 ON THE FILE
OF JUDICIAL FIRST CLASS MAGISTRATE
COURT-III ERNAKULAM.
Annexure 3 TRUE COPY OF THE ORDER DATED 14.10.2019
IN CRL. APL NO. 148/2017 ON THE FILE OF
ADDITIONAL SESSIONS COURT-V.
Annexure 4 TRUE COPY OF THE ORDER IN CRL RP NO.
41/2020 DATED 29.01.2020 OF THIS HONBLE
COURT.
Annexure 5 THE TRUE COPY OF THE AFFIDAVIT DATED
21.10.2021 FILED BY THE FIRST RESPONDENT
COMPLAINANT.
RESPONDENTS' ANNEXURES NIL
