This Criminal Miscellaneous Case is filed by the petitioner, who is the accused in S.T.No.235/2006 challenging the order in CMP.No.7822/2014 of the Judicial First Class Magistrate Court- II, Kollam under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner was the accused in S.T.No.235/2006 of the Judicial First Class Magistrate Court-II, Kollam which was taken on file on the basis of a complaint filed by the complainant under Section 138 of the Negotiable Instruments Act. After trial, the learned Magistrate acquitted the petitioner. The complainant filed Crl.A.No.339/2009 before this Court and this Court by Annexure A1 judgment set aside the order of acquittal and found the petitioner guilty and sentenced him to undergo imprisonment till the rising of the court and also to pay compensation of Rs.80,000/- to PW1, in default to undergo simple imprisonment for three months. After the disposal of the case, the complainant died and so the petitioner moved CMP.No.7822/2014 before the Judicial First Class Magistrate Court-II, Kollam to receive compensation amount and allow him to serve imprisonment as directed in Annexure-A1 judgment. But the learned Magistrate by Annexure-A3 order dismissed that application stating that since the amount was directed to be paid to the complainant by this Court, that court is not competent to permit the accused to deposit the amount in court. The above said order is being challenged before this Court.
4. 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 dispensing with notice to respondents 2 to 4, who are the legal heirs of late Sivadasan, the original complainant in the case.
5. Counsel for the petitioner submitted that since it is difficult for him to pay the amount to the legal heirs and as they are more in number and it is difficult to produce them before court to satisfy the payment unless they were brought on record in the lower court, as competent person to prosecute further action, he has no other remedy except to deposit the amount before court. Even in case where there is a direction to pay the amount, if he is not able to pay the amount to the complainant, he has no other remedy except to deposit the amount and even in such cases, the lower court was not justified in refusing to receive the amount.
6. The learned Public Prosecutor submitted that appropriate orders may be passed.
7. It is an admitted fact that on the basis of a complaint filed by the original complainant - one Sivadasan against the petitioner alleging offence under Section 138 of th Negotiable Instruments Act, the case was taken on file as S.T.No.235/2006 on the file of the Judicial First Class Magistrate Court-II, Kollam and the learned Magistrate acquitted the accused, but that was reversed as per order in Crl.A.No.339/2009 dated 28.3.2014 whereby the order of acquittal was set aside and the petitioner was found guilty and convicted under Section 138 of the Act and sentenced him to undergo imprisonment till the rising of the court and also to pay an amount of Rs.80,000/- as compensation to the complainant, in default to undergo simple imprisonment for three months. There was no time limit mentioned in the order. Since the complainant is no more, the petitioner filed Annexure-A2 petition permitting him to deposit the amount before court and receive substantive sentence of imprisonment till the rising of the court which was dismissed by the learned Magistrate by the impugned Annexure-A3 order stating that the court has no power to permit the accused to deposit the amount as this Court has directed to pay the amount to PW1. It may be mentioned here that when compensation is ordered to be payable to PW1 under Section 357 (3) of the Code of Criminal Procedure, the option available to the accused is either to deposit the amount in court or pay the amount to the complainant directly to avoid default sentence. In this case, admittedly the complainant is no more. So the petitioner has no other option except to deposit the amount before the court below in compliance with the directions as per Annexure- A1 judgment. Even if the amount is not paid, then the Magistrate is at liberty to recover the amount as though it is fine under Section 421 of the Code and pay the same to the complainant. So, under the circumstances the reason stated by the learned Magistrate for dismissal of the petition that the court is not competent to permit the accused to deposit the amount in cases where the amount was directed to be paid to the complainant as compensation under Section 357(3) of the Code is unsustainable and the same is liable to be set aside. So this Court has no other option except to allow Annexure-A2 petition and direct the Magistrate to receive the amount and allow the petitioner to serve substantive sentence of imprisonment till the rising of the court as ordered by this Court as per Annexure A1 judgment. So the petition is disposed of as follows:
If the petitioner surrenders before the Judicial First Class Magistrate Court-II, Kollam and seeks permission to deposit the amount ordered by this Court as compensation, then the learned Magistrate is directed to receive the amount and permit the petitioner to serve imprisonment till the rising of the court as ordered by this Court as per Annexure-A1 judgment. The petitioner is directed to surrender before the court below on 9.6.2014 and remit the amount as directed by this Court.
With the above directions and observations, the petition is disposed of.
Office is directed to communicate this order to the concerned court immediately and also furnish a copy of this order to the counsel for the petitioner so as to produce before the court below.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge