Allowed

V.Viajayan v. P.P.Zainuddin

Kerala HC6 Jun 2014Crl.MC/2997/2014

Case brief

AI extract

What is this about?

Accused in a cheque bounce case sought directions to surrender and pay compensation after the time limit set in a 2007 order expired. The Court held that the Magistrate cannot deny surrender or receipt of payment to offset default sentence.

What did the court decide?

Directed the Judicial First Class Magistrate-I, Kannur to receive compensation paid upon surrender and permit service of substantive sentence.

V.Viajayan Vs P.P.Zainuddin — Cheque Dishonour | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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FRIDAY, THE 6TH DAY OF JUNE 2014/16TH JYAISHTA, 1936

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Crl.MC.No. 2997 of 2014 ()

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CC.NO.600/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1, KANNUR

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PETITIONER/ACCUSED :

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V. VIJAYAN,S/O.CHIRUKANDAN, AGED 58 YEARS, RESIDING AT SHEENA NIVAS, MACHERY.P.O., MOWANCHERRY, KANNUR DISTRICT.

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BY ADV. SRI.P.P.RAMACHANDRAN

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RESPONDENT(S)/COMPLAINANT :

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1. P.P.ZAINUDDIN,S/O.KUNHAMBU,AGED 68 YEARS,

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AHAMADIYA ROAD, PAYANGADI, KANNUR-670 001.

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R2 BY PUBLIC PROSECUTOR SMT. P.MAYA

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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CRMC.NO.2997/2014

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEX A COPY OF THE ORDER OF THIS HON'BLE COURT IN CRL.REVISION PETITION NO.1081/2007 DATED 12/3/2007

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RESPONDENT'S ANNEXURES: NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

K.RAMAKRISHNAN, J.

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=================

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CRL.M.C.NO.2997 OF 2014

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===================== Dated this the 6^th day of June, 2014

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ORDER

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This is an application filed by the petitioner who is the accused in CC.No.600 of 2001 on the file of the Judicial First Class Magistrate Court-I, Kannur to issue directions to the concerned Magistrate to receive the compensation amount and permit him to serve the sentence as he apprehends that the Magistrate will not allow since the time fixed by this Court is expired under Section 482 of the Criminal procedure Code.

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It is alleged in the petition that the petitioner is the one accused in CC.No.600 of 2001 on the file of the Judicial First Class Magistrate Court-I, Kannur which was taken on file on the basis of the private complaint filed by the first respondent herein alleging offences under Section 138 of the Negotiable Instruments Act. The trial Court found the petitioner guilty and convicted him to undergo imprisonment also directed to pay the cheque amount as compensation with default sentence under section 357(3) of Criminal Procedure Code. Though the petitioner filed Criminal Appeal No.575 of 2001 before the Sessions Court and the Additional Sessions Court, (Adhoc-I), Thalassery allowed the appeal in part confirming the order of conviction and directed to pay

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CRL.M.C.NO.2997 OF 2014 2

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compensation under Section 357(3) of Criminal Procedure Code but reduced the substantive sentence to imprisonment till rising of Court. Though the petitioner filed revision before this Court as Criminal RP.No.1081 of 2007, that was dismissed by this Court at the admission stage itself directing the petitioner to receive the sentence on 12.09.2007. But he could not comply with the direction. It is alleged in the petition that though he is now prepared to receive the sentence, since the time was expired, the Magistrate is not allowing the petitioner to surrender and receive the sentence. So, the petitioner has no other remedy except to approach this Court seeking the following relief:-

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Direct the Judicial First Class Magistrate-I, Kannur to allow the petitioner/accused to comply with stipulations in Annexure-A order within a stipulated time

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Considering the nature of relief claimed in the petition this Court felt that the petition can be disposed of at the admission stage itself after hearing the counsel for the petitioner and the learned Public Prosecutor appearing for the second respondent dispensing with notice to the first respondent.

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The counsel for the petitioner submitted that he is prepared to comply with the direction. But the Magistrate will not allow him to do the same as time fixed by this Court has expired.

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The application was opposed by the learned Public

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CRL.M.C.NO.2997 OF 2014

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Prosecutor on the ground that he was absconding and the order was passed by this Court in the year 2007.

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It is an admitted fact that the petitioner was convicted and sentenced for the offence under Section 138 of the Negotiable Instruments Act and finally the sentence was confined to imprisonment till the rising of the Court and also to pay the compensation of `.32,980/- to the complainant in default to undergo simple imprisonment for three months. It is true that this Court has while confirming the modified sentence passed by the appellate Court granted time till 12.09.2007 to the petitioner to comply with the directions but he had not done the same. Even assuming that he has not complied with the direction within the time, he want to surrender before the Court, Court cannot say that he cannot surrender and pay the amount as even if the direction is not complied with while executing the conviction if the accused produces the amount of fine or compensation then that will have to be accepted by the Court. Further even if he has to be sent to jail and to suffer the default sentence, even then, if during the period of confinement, if he pays the amount that amount has to be received and prorata reduction will have be given to him as provided under Sections 68 & 69 of the Indian penal Code. So the Magistrate cannot deny the right of the accused to surrender before the Court even if the time granted by this Court has expired and refused to

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CRL.M.C.NO.2997 OF 2014

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remit the amount if it is paid by the accused. So the petition is disposed of as follows:-

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If the petitioner surrenders before the Judicial First Class Magistrate Court-I, Kannur and pays the compensation amount ordered by the appellate Court and confirmed by this Court, then the lower Court is directed to receive the same and permit him to serve the substantive sentence of imprisonment till rising of the Court.

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With the above observations and directions, the petition is disposed of. Office is directed to communicate this order to the Court below at the earliest. Hand over a copy of this order to the counsel for petitioner as well so as to enable him to produce before Court when he surrenders to receive the sentence.

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sd/-

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K.RAMAKRISHNAN, JUDGE

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R.AV

V.Viajayan v. P.P.Zainuddin

Case brief

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V.Viajayan v. P.P.Zainuddin

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