IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1672 of 2010()
1. N. GOPAKUMAR,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. SHAJI PAILY,
For Petitioner :SRI.P.C.HARIDAS
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :26/05/2010
O R D E R
V. RAMKUMAR, J.
= = = = = = = = = = = = =
Crl.M.C..No.1672 of 2010
= = = = = = = = = = = = = =
Dated this the 26th day of May, 2010
ORDER
Petitioner, who was the accused in S.T.No.1713/2005
on the file of J.F.C.M. Ettumanoor, seeks to set aside the
order dated 03.04.2010 passed by the learned Magistrate
directing the issue of committal warrant against the
petitioner for the rest of the sentence.
2. The above prosecution was one under Section 138
of the Negotiable Instruments Act involving a cheque for
Rs.85,000/-. The trial court convicted the accused and
sentenced him to undergo simple imprisonment for two
months and to pay the cheque amount as compensation and
on default to pay the compensation to undergo simple
imprisonment for two months. On appeal preferred by him
before the Sessions Court as Crl.Appeal No.301 of 2008, the
learned Additional Sessions Judge as per judgment dated
26.10.2009 confirmed the conviction but modified the
Crl. M.C. No. 1672 of 2010
2
sentence directing him to undergo imprisonment till the
rising of the court and to pay a sum of Rs.85,000/- and on
default to pay the fine to suffer simple imprisonment for two
months. The matter was taken up before this Court in
revision as Crl.R.P.No.364/2010. As per final order dated
29.1.2010 (Annexure 3) this Court confirmed the conviction
but modified the sentence to one of imprisonment till the
rising of the court and to pay the cheque amount as
compensation within two months from 29.1.2010. There
was no default sentence imposed by this Court. The
petitioner has undergone imprisonment till the rising of the
Court, but he did not pay the compensation amount of
Rs.85,000/-. However, under the mistaken impression that
there was a default sentence for non-payment of
compensation, the learned Magistrate committed the
petitioner to custody. It is the said order of committal to
custody, which is assailed in this Crl.M.C. In the absence of
any default sentence for the non-payment of the
Crl. M.C. No. 1672 of 2010
3
compensation amount, the learned Magistrate can only
take steps under Section 431 read with 421 Cr.P.C as if the
compensation amount were a fine. Instead of resorting to
that, the petitioner could not have been arrested and
committed to the Prison.
As per letter dated 22.5.2010, the learned Magistrate
has also expressed his regret for overlooking the fact that
there was no default sentence. This Court had, as per order
dated 17.5.2010, already ordered the release of the
petitioner from custody and he has already been released
from custody. No further order remains to be passed in this
case. It is clarified that the compensation can be recovered
only as if it were a fine.
Dated this the 26th day of May, 2010.
V. RAMKUMAR, JUDGE
sj