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2017 DIGILAW 1409 (KER)

Biju v. Animon Alexander

2017-11-14

ALEXANDER THOMAS

body2017
ORDER : The prayers in this Original Petition (Criminal) filed under the enabling provisions in Article 227 of the Constitution of India are as follows : “a. Direct the Judicial First Class Magistrate Court-II, Mavelikkara, to consider Exhibit P4 petition on merit and allow the petitioner to surrender before the court to remit the fine amount of Rs.80,000/-. b. That the petitioner be granted such other relief's that are appropriate and incidental to this Original Petition.” 2. Heard Smt. Gisa Susan Thomas, learned counsel appearing for the petitioner/accused, and Sri. Saigi Jacob Palatty, learned prosecutor appearing for R2/State. 3. In the nature of the orders proposed to be passed in this Original Petition, notice to R1/complainant will stand dispensed with. 4. The petitioner has been indicted for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.643 of 2008 on the file of the Judicial First Class Magistrate Court-II, Mavelikara, instituted on the basis of a complaint filed by the first respondent herein. Exhibit P1 dishonoured cheque dated 28.8.2018 is for Rs.80,000/-. The trial court as per the impugned Exhibit P1 judgment rendered on 30.4.2010 has convicted the petitioner for the abovesaid offence and has sentenced the accused to pay fine of Rs.80,000/- and in default thereof, to undergo simple imprisonment for a period of three months. It is further ordered that the fine amount so realised will be disbursed as compensation to the complainant in terms of Section 357(1) of the Cr.P.C. Aggrieved thereby the petitioner has filed Criminal Appeal No.280 of 2010 before the Appellate Sessions Court. The appellate court concerned (Court of Additional Sessions Judge-I, Mavelikara) as per the impugned Exhibit P-3 judgment rendered on 29.7.2011 has dismissed the appeal and has thereby confirmed the impugned conviction and sentence imposed in this case. The petitioner challenged these judgments before this Court by filing Crl. R.P. No. 713 of 2012. This Court as per Exhibit P3 order rendered on 23.3.2012 has dismissed the Crl. R.P. confirming the conviction and sentence, but had granted three months' time to the petitioner to pay the fine amount. The said time limit stipulated by this Court in Exhibit P-3 order dated 23.3.2012 has expired as early as on 23.6.2012. According to the petitioner, he was employed abroad and therefore, he did not receive the communication sent by his counsel regarding the dismissal of the revision petition. The said time limit stipulated by this Court in Exhibit P-3 order dated 23.3.2012 has expired as early as on 23.6.2012. According to the petitioner, he was employed abroad and therefore, he did not receive the communication sent by his counsel regarding the dismissal of the revision petition. Now the petitioner is willing to pay the entire fine amount, etc. In that regard, he has approached the trial court by filing Exhibit P4 application dated 23.8.2017 seeking for directions to permit the petitioner to pay the fine amount. But it appears that in view of the long delay on the part of the petitioner to pay the fine amount, the trial court has taken steps for execution of the impugned sentence and thus non bailable warrant has now been issued against the petitioner. The petitioner's counsel would submit on the basis of instructions that the petitioner's wife is the only child of her parents and that the petitioner's father in law is suffering from acute cancer and so as he had to face various expenditures in that regard, he could not make the payment earlier. 5. The Division Bench of this Court in the judgment in Sreedharan v. Bharathan reported in 2014 (1) KLT 236 has held that grant of enlargement of time, after final disposal of the case, for making payment of the fine/compensation amount in case of involving offence under Section 138 of the Negotiable Instruments Act, will not amount to review of the judgment and so will not attract the statutory bar engrafted in Section 362 of the Cr.P.C. The Division Bench has held that situations can arise where due to pressing reasons completely beyond the control of the accused he may not be able to make the payment on the stipulated date and he will be all willingness to make the payment within the extended time sought for and the complainant may be willing to receive such payment and that in such situations by granting extension of time sought for, the High Court will be securing the ends of justice by giving relief to both the litigating parties and by facilitating full and final settlement of all the issues between them and that by such enlargement of time, the High Court will not be in any manner be reviewing the substantive decision to confirm the conviction and to modify the sentence. This Court in the decision in Girish v. Muthoot Capital Service (P) Ltd. reported in 2007 (1) KLT 16 has held that whenever a direction for payment of fine/compensation is issued along with the rider that in default of payment of fine/compensation, the indictee must undergo default sentence, such default sentence shall lapse at any time when the payment is made either before or after the default sentence starts running. When the court concerned or the superior courts grant time for payment and stipulates a date for payment it only means and implies that the default sentence shall not be executed till that day. Section 68 of the IPC provides as follows : “68. Imprisonment to terminate on payment of fine:- The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.” 6. In the light of the abovesaid aspects, this Court is of the view that appropriate directions can be issued in this case in the interest of justice. Moreover, the petitioner has been sentenced only to pay a fine of Rs.80,000/- with the default sentence clause of three months simple imprisonment. The petitioner's counsel submits that the petitioner is prepared to remit the fine amount before the trial court within any time limit that may be fixed by this Court. Accordingly, it is ordered that the petitioner is given time up to 28.11.2017 to remit the fine amount. Until then all coercive steps including non bailable warrant issued against the petitioner for execution of the sentence in this case will stand deferred. The Registry will forward a copy of this order to the trial court at the cost of the petitioner. With these observations and directions, the Original Petition (Crl.) will stand finally disposed of.