Dismissed

Sreekantan, v. Valsala

Kerala HC24 Jan 2020OP(Crl.)/55/2020

Case brief

AI extract

What is this about?

The High Court of Kerala held that a magistrate could validly issue a non-bailable warrant for the petitioner's arrest upon his default in paying the first installment of compensation, interpreting a higher court order that stipulates immediate lumpsum liability upon default.

What did the court decide?

Writ petition dismissed; order of the Judicial Magistrate issuing non-bailable warrant on January 10, 2020, upheld as legal and proper.

Sreekantan, Vs Valsala — Execution and Attachment | Kerala HC (2020)

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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 R. NARAYANA PISHARADI

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FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941

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OP(Crl.).No.55 OF 2020

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AGAINST THE ORDER/JUDGMENT IN ST 42/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -VI, NEYYATTINKARA

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PETITIONER/ACCUSED:

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SREEKANTAN, AGED 64 YEARS,

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S/O. VELAYUDHAN, GEETHANJALI, KOTTAYAM, PARASUVAIKKAL P.O. PARASSALA, THIRUVANANTHAPURAM 695 504.

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BY ADV. SRI.RAJESH P.NAIR

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RESPONDENT/LEGAL HEIRS OF THE COMPLAINANT AND STATE:

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1 VALSALA, WIFE OF LATE N. MURUKADAS, SUPRABHA COTTAGE CHANTHAVILAKAM, ELLUVILA P.O. KARAKKONAM, NEYYATTINKARA, THIRUVANANTHAPURAM 695 504.

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2 SUNIL,

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SON OF LATE N. MURUKADAS, SUPRABHA COTTAGE, CHANTHAVILAKAM, ELLUVILA. P.O. KARAKKONAM, NEYYATTINKARA, THIRUVANANTHAPURAM 695 504.

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3 PRASAD, SON OF LATE N. MURUKADAS, SUPRABHA COTTAGE, CHANTHAVILAKAM, ELLUVILA P.O. KARAKKONAM, NEYYATTINKARA, THIRUVANANTHAPURAM 695 504.

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4 BALACHANDRAN, SON OF LATE N. MURUKADAS, SUPRABHA COTTAGE, CHANTHAVILAKAM, ELLUVILA P.O. KARAKKONAM, NEYYATTINKARA, THIRUVANANTHAPURAM. 695 504.

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5 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.

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SRI. C K PRASAD-PUBLIC PROSECUTOR

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THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 24.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(Crl.).No.55 OF 2020

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JUDGMENT

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The petitioner is the accused in the case S.T. No.42/2011 of the file of the Court on the Judicial First Class Magistrate-VI, Neyyattinkara.

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The trial court found the petitioner guilty of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and convicted him thereunder. The trial court sentenced him to simple imprisonment for a period of ten days and to pay a fine of Rs.2,50,000/-.

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The petitioner filed Crl. Appeal No.177/2015 before the Court of Session, Thiruvananthapuram challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction but modified the sentence. The substantive sentence was reduced to imprisonment till the rising of the court and the fine amount was reduced to 2,42,000/-.

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OP(Crl.).No.55 OF 2020

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The petitioner filed Crl.R.P. No.1116/2019 before this Court challenging the concurrent findings of guilty and conviction made by the courts below and the sentence imposed on him by the appellate court. The revision petition was allowed by this Court confirming the conviction against the petitioner and also confirming the sentence of imprisonment till the rising of the court. However, this Court, converted the sentence of fine as a direction to pay compensation to the complainant in instalments.

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As per the order of this Court in Crl.R.P. No. 1116/2019, the petitioner had to pay the first instalment of compensation on 01/12/2019. Admittedly, he did not pay the amount on or before that day. It appears that, then Exhhibit-P2 order was passed by the learned Magistrate issuing nonbailable warrant against the petitioner, presumably in execution of the sentence against him. The aforesaid order is challenged in this Original Petition filed under Article 227 of the Constitution of India.

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Heard learned counsel for the petitioner.

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OP(Crl.).No.55 OF 2020

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The operative portion of the order of this Court in Crl.R.P. No.1116/2019 is extracted below.

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“ The revision is allowed as indicated below : While confirming the conviction on the petitioner and the substantive sentence of imprisonment for a day till the rising of the court, the direction to pay fine is converted to a direction to pay compensation. The quantum of compensation shall be Rs. 2,32,000/(two lakhs thirty two thousand only). The petitioner is given an instalment facility to pay off the compensation. It shall be paid in four equal monthly instalments. The first instalment shall fall due on the 1^st of December, 2019. The subsequent instalments shall fall due on the 1^st day of every succeeding month. If any instalment is defaulted, the balance payable shall become payable in lump. The default sentence imposed by the trial court and confirmed by the appellate court is retained.”

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OP(Crl.).No.55 OF 2020

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8 . Learned counsel for the petitioner contended that though the petitioner failed to pay the first instalment which was due on 01/12/2019, he has been given four months time by this Court to pay the amount of compensation. Learned counsel contended that, therefore, Exhibit-P2 order passed by the learned Magistrate issuing non-bailable warrant against the petitioner in execution of the sentence against him is illegal and improper.

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I am unable to accept the aforesaid contention raised by the learned counsel for the petitioner. In the order of this Court in Crl.R.P. No.1116/2019, it has been made very clear that, if any instalment is defaulted, the balance payable shall become payable in lump. That means, as soon as the payment of the amount of any instalment is defaulted, the entire amount of compensation became payable in lump. It also means that, the trial court could take steps for execution of the sentence imposed against the petitioner, as modified by this Court in Crl.R.P. No. 1116/2019, without waiting for the whole period granted for payment of the amount of compensation.

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If the contention of the learned counsel for the

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OP(Crl.).No.55 OF 2020

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petitioner is accepted, the stipulation made by this Court in the order in Crl.R.P. No. 1116/2019 that, if any instalment is defaulted, the balance payable shall become payable in lump, would become nugatory and redundant.

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There is yet another aspect. The petitioner has to undergo imprisonment till the rising of the Court. He has no case that he has suffered that sentence by appearing before the court below. Even according to the counsel for the petitioner, no time has been granted by this Court to suffer the sentence of imprisonment till the rising of the court.

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In the aforesaid circumstances, I find no substance in this Original Petition. There is no illegality or impropriety in the order passed by the leaned Magistrate in taking steps for execution of the sentence against the petitioner.

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Consequently, the Original Petition is dismissed.

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Sd/-

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R. NARAYANA PISHARADI

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JUDGE

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sms

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OP(Crl.).No.55 OF 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE ORDER DATED 22.10.2019 IN CRL. R.P. NO. 1116/2019.

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EXHIBIT P2 CERTIFIED COPY OF THE ORDER DATED 10.1.2020 IN S.T. NO. 42/2011 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE VI NEYYATTINKARA.

Sreekantan, v. Valsala

Case brief

What is this about?

What did the court decide?

Sreekantan, v. Valsala

Case brief

What is this about?

What did the court decide?

What the court decided

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