Partly allowed

P.S Binoy, v. State of Kerala

Kerala HC2 Sept 2019Crl.MC/6188/2019

Case brief

AI extract

What is this about?

This criminal miscellaneous case set aside an order dismissing an application to release deposited funds due to lack of evidence regarding compensation payment or service of default sentence, directing the trial court to consider the application upon production of such materials.

What did the court decide?

Impugned order (Annexure A4) set aside; trial court directed to consider Crl.M.P No.12/2019 pending on its file on proof of compensation payment or service of default sentence.

P.S Binoy, Vs State of Kerala — Execution and Attachment | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941

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Crl.MC.No.6188 OF 2019(C)

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AGAINST THE ORDER/JUDGMENT IN ST 46/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS V, KOTTAYAM

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PETITIONER/ACCUSED:

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P.S BINOY, AGED 54 YEARS S/O.SCARIA, PANAKUNNEL HOUSE, AMAYANNOOR KARA, AMAYANNOOR P.O., AYARKUNNAM VILLAGE, KOTTAYAM686019.

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BY ADVS. SRI.V.B.PREMACHANDRAN SRI.S.MADHAVAN NAIR

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RESPONDENTS/STATE&LEGAL HEIRS OF DE-FACTO COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN- 682031.

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2 O.A.MARIAMMA, AGED 60 YEARS W/O.O.V.VARGHESE, UDUMBANATTU HOUSE, AMAYANNOOR P.O., AYARKUNNAM VILLAGE, KOTTAYAM- 686019.

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3 RINU RACHEL VARGHESE, AGED 30 YEARS D/O.O.V.VARGHESE, UDUMBANATTU HOUSE, AMAYANNOOR P.O., AYARKUNNAM VILLAGE, KOTTAYAM- 686019.

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4 ABIN VARGHESE, AGED 28 YEARS S/O.O.V.VARGHESE, UDUMBANATTU HOUSE, AMAYANNOOR P.O., AYARKUNNAM VILLAGE, KOTTAYAM- 686019.

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SR.PP.C.N.PRABHAKARAN

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.6188/2019 2

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ORDER

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Dated this the 2nd day of September 2019

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In the application on hand order produced as Annexure A4 is sought to be set aside by the petitioner who is the sole accused in S.T No.46/2010 on the files of Judicial First Class Magistrate Court-V, Kottayam (for short 'the trial court'). Annexure A4 order was passed in C.M.P No.12/2019, which is an application filed by the petitioner seeking to get Rs.1,00,000/- (Rupees one lakh only) deposited by him pursuant to direction issued by the appellate court (Court of Sessions, Kottayam) while entertaining Crl.Appeal No.76/2011 filed by him before that court and during suspension of execution of sentence imposed by the judgment, taken up in challenge therein, released in his favour.

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The contention of Sri.V.B. Premachandran, the learned counsel for the petitioner was that the judgment of the appellate court was modified by the revisional court, whereby the substantive sentence was reduced to imprisonment till rising of the court and the

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Crl.MC.No.6188/2019 3

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fine amount, as compensation payable under Section 357(1)(b) Cr.P.C. The petitioner was also directed by the judgment of the revisional court to undergo simple imprisonment for two months, as default sentence on failure to pay the compensation amount. It is submitted by the learned counsel that the petitioner failed to pay the compensation amount to respondents 2 to 4 herein (legal heirs of deceased complainant) and had undergone default sentence pursuant to the order passed by the revisional court.

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In the aforesaid circumstances, C.M.P No.12/2019 was filed by him seeking to get the amount deposited by him while suspending the execution of sentence released in his favour. The said application was dismissed by the trial court stating that materials are not produced to establish either that compensation was paid or that default sentence has been served. When asked about, it is submitted by the learned counsel that the document pertaining to that aspect is not available with him, but he has stated that the petitioner had undergone default sentence of two months imprisonment. According to him, he could procure a document to the effect and will be able to produce the same, provided, an opportunity is granted to him to

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Crl.MC.No.6188/2019 4

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approach the trial court.

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In the aforesaid circumstances, the impugned order (Annexure A4) stands set aside. The trial court is directed to consider Crl.M.P No.12/2019 in S.T No.46/2010 pending on its file subject to production of materials by the petitioner to evidence payment of compensation to respondents 2 to 4 herein (legal heirs of deceased complainant) or that he had undergone the default sentence in due compliance of direction in the judgment of the revisional court. Only on furnishing the materials as above, the court below shall entertain the application and dispose it of in- accordance with law.

Sd/-

MARY JOSEPH

JUDGE

Crl.MC.No.6188/2019 5

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF THE JUDGMENT IN CRL.R.P.NO.860/2014 OF THE HON'BLE HIGH COURT OF KERALA, DATED 22.05.2014.

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ANNEXURE A2 TRUE COPY OF THE ORDER IN CRL.APPEAL NO.76/2011 OF THE ADDITIONAL SESSIONS COURT(SPL.), KOTTAYAM.

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ANNEXURE A3 TRUE COPY OF THE APPLICATION, CRL.M.P.NO.12/2019 SUBMITTED BY THE PETITIONER BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-V, KOTTAYAM.

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ANNEXURE A4 CERTIFIED COPY OF THE ORDER DATED 21.03.2019 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-V, KOTTAYAM.

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RESPONDENT'S/S EXHIBITS: NIL

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//TRUE COPY//

P.S Binoy, v. State of Kerala

Case brief

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P.S Binoy, v. State of Kerala

Case brief

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