K.Bala Dandapani v. State Of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE B.KEMAL PASHA THURSDAY, THE 8TH DAY OF OCTOBER 2015/16TH ASWINA, 1937 OP(Crl.).No. 253 of 2014 (Q) ----------------------------- ST. NO. 1775/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II (MOBILE), KOTTAYAM ------------------ PETITIONER :

--------------------- K.BALA DANDAPANI, PROPRIETOR, M/S.AKHILANDESWARI TRADERS, 5/1 NAVY NAGAR 5TH CROSS ROAD, MEENA ESTATE, COIMBATORE TAMIL NADU.

BY ADVS.SRI.E.C.POULOSE SMT.BOBBY RAPHAEL C.

RESPONDENT(S) :

----------------------------

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

2. KURIAKOSE PHILIP, PROPRIETOR, M/S.ARONS, KANDAKOTTU HOUSE RAMAMANGALAM, MUTTAMBALAM POST, KOTTAYAM-686 004.

R1 BY PUBLIC PROSECUTOR SMT. P. MAYA R2 BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S. KURUP THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/-

OP(Crl.).No. 253 of 2014 (Q) ---------------------------------------- APPENDIX PETITIONERS' EXHIBITS :

------------------------------------- EXT. P1:

COPY OF THE TELEGRAM SENT BY THE PETITIONER TO THE 2ND RESPONDENT THROUGH HIS COUNSEL.

EXT. P2:

COPY OF THE LAWYER NOTICE DATED 28/12/2011 CAUSED BY THE PETITIONER TO THE 2ND RESPONDENT.

EXT. P3:

COPY OF THE REPLY NOTICE DATED 8/2/2012 SENT BY THE PETITIONER THROUGH HIS COUNSEL TO THE 2ND RESPONDENT. EXT. P4:

COPY OF THE JUDGMENT DATED 9/4/2014 IN S.T.NO.1775/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II (MOBILE), KOTTAYAM. EXT. P5:

COPY OF THE TRANSFER PETITION (CRL.) NO.326/2014 FILED BY THE PETITIONER BEFORE THE HON'BLE SUPREME COURT OF INDIA. RESPONDENT(S)' EXHIBITS : NIL ----------------------------------------------------------- //TRUE COPY// P.S. TO JUDGE Mn

B. KEMAL PASHA, J.

................................................................ O.P.(Crl) No.253 of 2014 ............................................................... Dated this the 8th day of October, 2015

J U D G M E N T

Ext.P4 order, by which the court below has found the petitioner guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, and has imposed a sentence of fine of ₹14 lakhs, is under challenge. 2.

According to the petitioner, the learned Magistrate has failed to comply with the mandatory provisions contained under Section 265B(4) Cr.P.C. as the court has failed to examine the petitioner in camera in the absence of the complainant.

3.

On going through Ext.P4 order, it does not say as to whether the petitioner was examined by the court below in camera, in the absence of the complainant in the case. It

-: 2 :- is a mandatory procedure contemplated under law that in case of plea bargaining the accused shall be examined by the court below in camera, in the absence of the complainant or the defacto complainant. The said provision is incorporated for the absolute satisfaction of the court that in case of plea bargaining there was no compulsion or insistence from the part of the complainant or the defacto complainant as the case may be, on the accused to force a settlement. It is in order to avoid the possibility of any such compulsion or pressure tactics from the part of the complainant or the defacto complainant as the case may be, the said provision has been incorporated.

4.

In Girraj Prasad Meena v. State of Rajasthan and others[2013 (4) KLT SN 80] it was held by the Apex Court that all the procedures contemplated in Chapter XXIA of the Cr.P.C. are mandatory in nature and the court has to scrupulously follow all such mandatory provisions contemplated under law for invoking the jurisdiction of the

-: 3 :- court to entertain a plea bargaining. In such case, when such a mandatory procedure has been contemplated by law, the court below ought to have mentioned specifically the same in the order that such a mandatory procedure was followed. The petitioner herein has been clamouring from the beginning that the court below has failed to observe such a mandatory procedure. Matters being so, Ext.P4 order is bad in law on that aspect alone.

5.

This Court has occasion to note down another gross illegality committed by the learned Magistrate in imposing the sentence also. The court below has chosen to impose a sentence of fine of ₹24 lakhs on the petitioner. It seems that the court below has imposed the said sentence of fine as compensation to the complainant under Section 357(3) Cr.P.C. Instead of that, the court below ought to have imposed a fine. If the sentence is imposed as a fine, the court below could have ordered total fine amount or a quantity out of it, as compensation to the complainant under

-: 4 :- Section 357(1) Cr.P.C. When the court below has chosen to impose a sentence of fine, the court below has no power or authority to order compensation under Section 357(3) Cr.P.C. In that respect also, the sentence imposed by the court below is illegal.

6.

Consequently, an offence under Section 138 of the N.I. Act is not covered by Section 265E clauses (a) to (c). This is not an offence wherein minimum sentence has been prescribed. In such case, in the case of plea bargaining, the court below ought to have complied with the provisions of Section 265E(d) Cr.P.C, and the court below ought to have imposed one fourth of the sentence that can be imposed. The offence under Section 138 of the N.I. Act is punishable with imprisonment with a term which may extend to 2 years, or with fine, which may extend to twice the amount of cheque. Even in the case of fine, the court below could have imposed only half the amount ordered as fine in the present case. In the matter of sentence, the court

-: 5 :- below ought to have considered the substantive sentence of imprisonment as well as the fine which could be imposed. In that case the court below ought to have imposed substantive sentence of imprisonment for six months also. 7.

Matters being so, there is gross illegality in the procedure followed by the court below, and gross illegality has been crept in Ext.P4 order also. Therefore, Ext.P4 order is liable to be quashed.

In the result, this Writ Petition is allowed and Ext.P4 order stands quashed. The court below is directed to proceed with matter for taking evidence in the case. Being an old matter, the court below shall dispose of the matter, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. B.KEMAL PASHA, JUDGE ul/-