IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3448 of 2008()
1. M.E.ALI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.S.SHANAVAS KHAN
For Respondent :SRI.K.P.MAJEED
The Hon'ble MR. Justice R.BASANT
Dated :05/09/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 3448 of 2008
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Dated this the 5th day of September, 2008
ORDER
The petitioner has been found guilty, convicted and
sentenced in a prosecution under Sec.138 of the Negotiable
Instruments Act. He now faces a sentence of imprisonment till
rising of court. There is a further direction to him to pay an
amount of Rs.2,48,000/- as compensation under Sec.357(3)
Cr.P.C. and in default, to undergo simple imprisonment for a
period of six months. The matter went upto the Supreme
Court. The S.L.P. was dismissed. The petitioner had been
directed by this Court in the appeal to appear before the
learned Magistrate on 18/7/06. He did not appear.
2. After the disposal of the case by the Supreme Court,
parties have now settled their disputes. The entire amount of
compensation payable under the judgment passed in the
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appeal has already been paid to the complainant. But the
petitioner has not entered appearance before the learned
Magistrate so far to undergo the substantive sentence of
imprisonment till rising of court.
3. The petitioner is now willing to appear before the
learned Magistrate. He is willing to undergo the substantive
sentence of imprisonment till rising of court. Why then does he
not appear? The petitioner apprehends that when he so appears
notwithstanding the fact that the entire amount has been paid to
the complainant and the complainant accepts and acknowledges
that payment, the petitioner may still be compelled to undergo
the default sentence. This apprehension is based on the fact
that the payment has been made only after the dismissal of the
S.L.P. by the Supreme Court and because the petitioner had not
surrendered before the learned Magistrate on 18/7/06 as
directed by this Court in appeal.
4. I must say that the apprehension of the petitioner is
totally unjustified. The last trace of doubt on this aspect is laid
to rest by the decision in Girish v. Muthoot Capital Service
(P) Ltd., (2007 (1) KLT 16). The petitioner can now appear
before the learned Magistrate. He must undergo the substantive
sentence of imprisonment till rising of court. Thereafter, he will
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be liable to undergo the default sentence only if there is failure
to pay the amount of compensation payable under Sec.357(3)
Cr.P.C. If the petitioner and the complainant would appear
before the learned Magistrate and report to the learned
Magistrate that the compensation amount has already been paid,
there can be no question of the learned Magistrate compelling
the petitioner to undergo the default sentence as there will be no
default, the amount having admittedly been paid by the
petitioner and received by the complainant. I am, in these
circumstances, satisfied that this Crl.M.C. need only be
dismissed. I may hasten to observe that the learned Magistrate,
if the learned Magistrate is satisfied from the submission of the
parties that the compensation amount has been paid, has no
jurisdiction to compel the petitioner to undergo any default
sentence as there will be no default.
5. With the above observations, this Crl.M.C. is dismissed.
6. Hand over a copy of this order to the learned counsel for
the petitioner.
(R. BASANT, JUDGE)
Nan/
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