IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 874 of 2007()
1. ABDUL RAZAK P., S/O KUNHALAN,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. VIJAYARAJAN.C, S/O KANARAN,
For Petitioner :SRI.BABU S. NAIR
For Respondent :SRI.ABRAHAM SAMSON
The Hon'ble MR. Justice R.BASANT
Dated :23/03/2007
O R D E R
R.BASANT, J
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Crl.M.C.No.874 of 2007
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Dated this the 23rd day of March, 2007
ORDER
The petitioner has been found guilty, convicted and sentenced in
a prosecution under Section 138 of the N.I Act. This Court in revision
had modified the sentence. The petitioner now faces the sentence of
imprisonment till rising of court. There is a further direction “to pay”
an amount of Rs.90,000/- by way of compensation to the complainant.
The default sentence is also prescribed. There is a further direction
that the petitioner shall surrender before the learned Magistrate
positively within two months from 20.12.2006 and shall “deposit” the
entire amount of compensation before court positively on that date.
Default sentence is also prescribed. For the sake of clarity, I extract
the relevant operative portion in para.3 of the order passed in revision
below:
“3. In the result, I confirm the conviction of the
petitioner for offence under Section 138 of N.I Act but
modify and reduce the sentence of imprisonment to
imprisonment for one day till rising of court and direct the
petitioner to pay an amount of Rs.90,000/- by way of
compensation to the 2nd respondent/complainant under
Section 357(3) Cr.P.C and in default to undergo simple
imprisonment for three months. The petitioner shall
surrender before the Judicial First Class Magistrate,
Malappuram positively within two months from today to
serve the sentence and shall at the same time deposit the
entire amount of compensation before the court positively
on that day. In case of failure to make deposit of
compensation on that day, the learned Magistrate shall
Crl.M.C.No.874 of 2007 2
enforce the sentence in default of payment of
compensation forthwith.
This Criminal revision is disposed of as above.”
2. The petitioner/accused and the respondent/complainant
have now come before this Court with this petition under Section 482
Cr.P.C. Both of them submit that the amount of compensation has
already been paid and received by the complainant. The petitioner
had not appeared before the learned Magistrate within a period of
two months as directed. The petitioner is willing to appear before the
learned Magistrate to suffer the substantive sentence of
imprisonment, but he apprehends that in view of the later statement
that the amount must be “deposited” positively within two months, the
default sentence may be enforced notwithstanding the admitted fact
that the payment has been made to the complainant.
3. I do note that there is some confusion. In the earlier
portion of para.3 extracted above, the direction is to pay the amount
and later it has been directed that it shall be deposited. The
petitioner contends that it has been paid thinking that that would be
sufficient compliance.
4. I am satisfied, in these circumstances, that it can be
clarified that if the learned Magistrate is satisfied that payment of
Rs.90,000/- has been effected by the petitioner/accused to the
respondent/complainant, the default sentence should not be enforced.
Crl.M.C.No.874 of 2007 3
Insistence need not be made on literal compliance of the direction to
deposit the amount in para.3 of the order in revision extracted above.
5. This Crl.M.C is, in these circumstances, allowed in part.
The above clarification is made. The petitioner along with the
complainant can now appear before the learned Magistrate
immediately and the petitioner can suffer the substantive sentence of
imprisonment.
6. Hand over a copy of this order to the learned counsel for
the petitioner.
(R.BASANT, JUDGE)
rtr/-