C V JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India. A frustrated indignant litigant is before this court. The prayer is for a direction to execute the judgment and sentence in Crl.A.No.501/2008 on the file of the Court of Sessions, Kottayam Division, by which the sentence in S.T. No.1264/2005 on the file of the Judicial First Class Magistrate Court -I, Kanjirappally was modified.

(2.) The petitioner is the complainant in S.T. No.1264/2005 on the file of the Judicial First Class Magistrate Court -I, Kanjirappally. It was a proceeding under Section 138 of the Negotiable Instruments Act. The accused was convicted by the trial court and was sentenced to undergo simple imprisonment for four months and to pay Rs.2 lakhs to the complainant as compensation under Section 357 (3) of Cr.P.C. The accused therein filed Crl.A.No.501/2008 before the Sessions Court, Kottayam. The appellate court confirmed the conviction and reduced the sentence as imprisonment till rising of the court and imposed a default imprisonment for two months, in case the compensation is not paid. Thereafter the second respondent/accused filed a revision petition before this court as Crl.R.P.No.3062/2009. The said revision petition was dismissed but granted six months' time for payment of compensation. The said revision was dismissed as back as on 1.10.2009. Since the sentence was seen not executed, the petitioner herein filed Crl.M.C.4430/2014 before this court under Section 482 of Cr.P.C. The said petition was dismissed with an observation that since no proceeding is pending in any court under the Code of Criminal Procedure, the petitioner cannot invoke the jurisdiction under Section 482 of the Cr.P.C., but had to file a petition under Article 227 of the Constitution of India and thereon the petitioner moved this petition.

(3.) In this petition, pursuant to the report called, there is a report dated 27.6.2016 from the Judicial First Class Magistrate Court -I, Kanjirappally which states that the file is seen misplaced and the said fact already reported to this court and sought time to trace out the same. Here is a case where the case bundle lost at the execution stage. Prosecution started in the year 2005 and finally disposed in 2009. Sentence not so far executed. It cannot be considered as a case where this Court is helpless and can only lament upon the fate of the complainant.