IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3164 of 2007()
1. AUGUSTINE GEORGE @ RAJU, S/O. GEORGE,
... Petitioner
Vs
1. THOMAS JOSEPH, S/O. JOSEPH,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.G.HARIHARAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :15/10/2007
O R D E R
R.BASANT, J.
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Crl.M.C.No.3164 of 2007
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Dated this the 15th day of October 2007
O R D E R
The petitioner has been found guilty, convicted and
sentenced in a prosecution under Section 138 of the Negotiable
Instruments Act. The verdict of guilty, conviction and sentence
have now become final. The petitioner was not being arrested by
the police. Warrants of arrest issued by the learned Magistrate
were not being returned. The respondent/complainant had, in
these circumstances, come to this court with the prayer that
there may be a direction to execute the warrants effectively. The
S.H.O of the police station concerned was directed to appear
before this court and explain why the warrant was not being
executed. He had undertaken to execute the warrant. That
Crl.M.C.No.2805/2007 now stands posted to 2/11/2007.
2. In the meantime, the petitioner has come to this court
now. He has subsequently been arrested. He had already
undergone the sentence of imprisonment till rising of court, it is
submitted. Since he did not make the payment, he was sent to
prison in execution of the default sentence. He is thus now
alleged to be in prison.
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3. According to the petitioner, he has paid the
compensation amount due to the complainant. Default sentence
is not liable to be continued now. The petitioner ought to be
released from custody. It is, in these circumstances, that the
petitioner along with the complainant’s counsel have come
before this court with a prayer to direct the learned Magistrate
to release the petitioner from custody.
4. It is certainly for the petitioner/accused and the
respondent/complainant to go before the learned Magistrate and
satisfy the learned Magistrate that payment of the compensation
amount has already been paid. The direction was only to pay the
amount and not to deposit the amount, it is submitted. If
payment of the compensation amount has already been made,
there can be no question of the petitioner being compelled to
undergo the default sentence any longer. But it is for the parties
to go before the learned Magistrate and request the learned
Magistrate to recall the warrant of commitment. If the petitioner
and the complainant succeed in satisfying the learned Magistrate
that payment has already been effected as directed by the
courts, there can be no question of the petitioner undergoing any
Crl.M.C.No.3164/07 3
further default sentence. The learned Magistrate, if so satisfied,
must immediately direct release of the petitioner from custody.
5. I am satisfied that it is for the petitioner to approach
the learned Magistrate and seek such relief. In the absence of
adequate details, this court cannot grant the relief prayed.
6. This Criminal Miscellaneous Case is in these
circumstances dismissed but with the observation that if the
petitioner/accused and the respondent/complainant satisfy the
learned Magistrate that the entire amount payable as
compensation has already been paid, the learned Magistrate
must forthwith take note of that fact and direct release of the
petitioner from custody. After payment of the amount, there can
be no question of the default sentence being executed against
the petitioner. The position has made sufficiently clear in Girish
v. Muthoot Capital Service (P) Ltd. [2007(1) KLT 16].
Hand over copy of this order to the learned counsel for the
petitioner today itself.
(R.BASANT, JUDGE)
jsr // True Copy// PA to Judge
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Crl.M.C.No.3164/07 5
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007