M.K. Kamalasanan vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner who is the accused in C.C. No. 50/02 on the files of Judicial First Class Magistrate Court, Ramankary to issue a direction to the magistrate under Section 482 of Code of Criminal Procedure.

It is alleged in the petition that the petitioner has been arrayed as accused in C.C. No. 50/02 on the file of Judicial First Class Magistrate Court, Ramankary which was taken on file on the basis of a private complaint filed by the second respondent alleging offence under Section 138 of the Negotiable Instruments Act. After trial, the learned magistrate found the petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay a compensation of Rs. 1,00,000/- in default to undergo simple imprisonment for two months under Section 357(3) of Code of Criminal Procedure. The petitioner filed Crl. Appeal. No. 220/07 before the Sessions Court, Alappuzha and the learned Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed by the court below. Thereafter, the petitioner filed Crl. R.P. No. 2724/08 before this court and this court by Annexure A1 judgment confirmed the order of conviction, but, confined the sentence to one of fine of Rs. 1,00,000/- and directed the fine amount if realized be paid to the complainant as compensation in default to undergo simple imprisonment for three months. It is further ordered in the judgment itself that the petitioner can directly pay the amount to the complainant as well within six months and file a memo before the court below to prove that payment. He could not pay the amount within time, but later he had paid the amount and filed a petition before the court below to record the payment and close the case. But, the learned magistrate by impugned order directed the parties to get a direction from this court and accused was released on self bond. So, the petitioner has no other remedy except to approach this court seeking the following relief:

"To direct the Court below not to enforce the default sentence imposed on the petitioner and release the petitioner in C.C. No. 50/2002 on the files of the Judicial Magistrate First Class Court, Ramankary, invoking the inherent jurisdiction of this High court under Section 482 of the Code of Criminal Procedure."

The second respondent appeared through Counsel and submitted that he had already received the amount and the complainant had no grievance against the petitioner and no objection in recording the payment and close the case.

Heard the learned Public Prosecutor also.

The Counsel for the petitioner submitted that in spite of the decisions of this court, the magistrates are insisting for getting direction from the court when time fixed by the court is expired.

It is an admitted fact that the petitioner has been arrayed as accused in C.C. No. 50/02 on the file of the Judicial First Class Magistrate Court, Ramankary which was taken on file on the basis of a private complaint filed by the second respondent under Section 138 of the Negotiable Instruments Act. It is an admitted fact that he was convicted by that court for that offence and sentenced to undergo imprisonment for three months and also to pay a compensation of Rs. 1,00,000/- in default to undergo simple imprisonment for three months under Section 357(3) of the Code of Criminal Procedure. Though the petitioner filed appeal before the Sessions Court as Crl. Appeal No. 220/07, the learned Sessions Judge dismissed the same. The petitioner filed Crl. R.P. No. 2724/08 before this court and this court by Annexure A1 order confirmed the order of conviction, but modified the sentence to one of fine of Rs. 1,00,000/- alone with default sentence of three months and it is further ordered in the order that if the fine amount is realized, the same be paid to the complainant as compensation under Section 357(1)(b) of Code of Criminal Procedure. It is also mentioned in the order itself that petitioner can either deposit the amount of fine before the court below or pay the amount directly to the complainant within six months and produce proof of such payment before that court. It is true that the petitioner could not pay the amount within time. But, he had paid the amount little later and obtained Annexure II memo to shaw that the entire amount has been received by the complainant. It is also seen from the documents produced that the petitioner filed a petition before the court below to record the payment of compensation when he appeared before the court below along with the complainant. But, learned magistrate did not accept that submission.

It may be mentioned here that even in a case where fine is imposed as a sentence and certain time has been granted to the parties to pay the amount and if it is not paid and later the accused wanted to remit the fine before the court, court is bound to receive that amount as non payment of fine only lead to put him in jail in execution of the default sentence. Even in a case where he has been sent for trial for non payment of the fine to serve the default sentence, during the pendency of that period, if he pays the amount, he will have to be released immediately in view of the provisions contained in Sections 68 & 69 of the Indian Penal Code. There is no necessity for further extension of time requires in such cases.

Further, in the decision reported in Beena Vs. The Union of India (UOI) and The Central Bank of India, , this court has observed that if the fine is imposed as sentence and out of fine, some portion was directed to be paid as compensation to the complainant and the party pays off that amount directly and produces proof of such payment before the trial court, then, trial court can record that fact on satisfaction and make necessary entries in the fine register and close the case after receiving the balance amount payable. Further, the question whether this can be done and a direction can be given by this court invoking the power under Section 482 of Code of Criminal Procedure was considered by this court in the decision reported in Sivankutty Vs. John Thomas, and in that case also, this court has held that, if there is a direction in the order to pay the amount directly to the party and if the amount is paid directly and produces proof of the same before the court below, then, court below can record the same and make necessary entries in the fine register and close the file. So, under the circumstances, the court need only consider when the complainant and the accused appeared before the court below and produces proof of such remittance or payment and if the court is satisfied with the payment of the amount to the complainant, then, court can very well record such fact and make necessary entries in the fine register and close the file. So, under the circumstances, this court feels that the petition can be disposed of as follows:

If the petitioner and the complainant appears before the court below and files a memo or receipt showing the payment of compensation as directed by this court and on satisfaction of that payment, then, the lower court is directed to make necessary entries in the fine register and close the case as stipulated in the decisions reported in Beena and Sivankutty (cited supra). The parties are directed to appear before the court on or before 19.09.2014.

With the above direction and observation, the petition is disposed of. Office is directed to communicate this order to the concerned court immediately.

Hand over a copy of the order to the Counsel for the petitioner also so as to produce the same before the court below for necessary further action in this regard.