Decided on November 15,2017

Sankappa Alva Appellant


- (1.) The prayers in this O.P(Crl.) filed by the petitioner under the enabling provisions contained in Art.227 of the Constitution of India are as follows: "i) Call for the records leading to Ext.P - 1 to P - 3 and P7 of the Chief Judicial Magistrate Court, Kasargod and set aside the order for issuance of DW as also N.B.W. if any against the petitioner in execution of the substantive or default sentence imposed him as per Ext.P - 1 judgment which he has already suffered. ii) Declare that the petitioner is not liable to suffer any further sentence as ordered in Ext.P - 1 judgment by way of imprisonment or fine. iii) issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;"
(2.) Heard Sri. Brijesh Mohan, learned counsel for the petitioner and Sri. Saigi Jacob Palatty, learned Prosecutor appearing for the respondents 1 to 4 (State authorities).
(3.) The petitioner herein was convicted for the offence punishable under S.138 of the Negotiable Instruments Act as per Ext.P - 1 judgment dated 06/02/1998 rendered by the Chief Judicial Magistrate's Court, Kasargod, in C.C. No. 270/1996 and he was sentenced to undergo simple imprisonment for 3 months and to pay fine of Rs.5,50,000/- and in default thereof, to undergo simple imprisonment for a further period of 3 months. Out of the said fine amount of Rs.5,50,000/-, Rs.5 lakhs was directed to be paid as compensation to the complainant under S.357(1) (b) of the Cr.P.C. The said conviction and sentence imposed by the Trial Court was affirmed by the appellate Sessions Court and thereafter, the petitioner had taken up the matter in revision by filing Crl.R.P. No. 384/2000. This Court as per Ext.P - 2 order rendered on 26/10/2007, had confirmed the said conviction and modified the substantive sentence of imprisonment for 3 months by reducing the same till the raising of the Court and had directed the petitioner to pay compensation of Rs.5,50,000/- directly to the complainant and in default thereof, to suffer simple imprisonment for 3 months. It is clear from Ext.P - 3 order dated 13/02/2009 passed by the Trial Court concerned that as a matter of fact, the petitioner had undergone simple imprisonment for the period from 06/09/2003 till 06/02/2004 (5 months) in execution of the impugned sentence. It was only later that this Court had rendered Ext.P - 2 revisional order dated 26/10/2007 directing reduction of the substantive sentence to imprisonment till rising of the Court, wherein also, the default sentence for simple imprisonment was for 3 months. It is the case of the petitioner that due to his financial difficulties, he was not in a position to pay the compensation amount of Rs.5,50,000/- to the complainant. In view of the directions issued by this Court in Ext.P - 2 revisional order dated 26/10/2007, the petitioner was to suffer substantive sentence of imprisonment till the rising of the Court as well as the default sentence for 3 months' simple imprisonment. But by the time, when Ext.P - 2 revisional order was rendered, the petitioner had already suffered simple imprisonment for 5 months for the abovesaid period from 06/09/2003 to 06/02/2004, as can be seen from a mere of Ext.P - 3 order passed by the Trial Court. Therefore, there is no question of the petitioner being made to suffer any further substantive sentence or default sentence on account of non - payment of compensation amount in respect of the present complaint.;

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