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KERALA HIGH COURT
Mr. Ashok Bhushan & A.M. Shaffique, JJ.
T. Mohammed Ashraf —Petitioner
versus
State of Kerala and Ors. —Respondents
W.A. No.658 of 2015
Decided on 27.5.2015
For the Petitioner:P.B. Sahasranaman, Sri T.S. Harikumar, Sri K. Jagadeesh & Sri Raajesh S. Subrahmanian, Advocates.
For the Respondent No. 3:Sri R.Prasanth Kumar, CGC by Special Government Pleader Smt. Girija Gopal, R. by Sri K.I. Mayankutty Mather, Advocates.
IMPORTANT POINT
Execution of sentence cannot be stayed by High Court where no proceedings are pending.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 141—Constitution of India—Articles 72 and 161—Dishonour of cheque—Conviction and sentence—Rejection of clemency petition by President of India—Power given to President of India under Article 72 is high prerogative power conferred on Head of State which is part of Constitutional Scheme—Conviction of petitioner has already been confirmed by Apex Court and clemency petition having been dismissed by President, Single Judge has rightly observed that no proceedings are pending on the basis of which proceeding for execution of sentence can be stayed by Court in exercise of Writ jurisdiction under Article 226 of Constitution—There is no error in decision of President rejecting petitioner’s application under Article 72 which may warrant interference by High Court in exercise of jurisdiction under Article 226 of Constitution—Writ Appeal dismissed. (Paras 11, 12, 18, 19 and 23)
Result: Criminal Petition dismissed.
Ashok Bhushan, C.J.—This Writ Appeal has been filed against the judgment dated 02.03.2015 in W.P.(C) No.23387 of 2014 dismissing the Writ Petition filed by the petitioner.
2. Brief facts giving rise to the Writ Appeal are:
Appellant, who shall hereinafter referred to as the Writ Petitioner, was convicted under Section 138 read with Section 141 of the Negotiable Instruments Act by the learned Chief Judicial Magistrate, Pathanamthitta in C.C. No.437 of 2002 with imprisonment for one year and was further ordered to pay a sum of Rs.57,97,940/- by way of compensation to P.W.1, complainant. Petitioner filed Criminal Appeal No.363 of 2006 which was dismissed by judgment dated 26.10.2007 by the learned District and Sessions Judge, Fast Track, Pathanamthitta. Criminal Revision Petition No.4154 of 2007 was filed by the petitioner in this Court. This Court vide order dated 25.06.2009 partly allowed the Revision Petition, the operative portion of which is quoted as follows:
(i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court.
(ii) Petitioner is granted six months’ time from this day to deposit in the trial court Rs.57,97,940/- (Rupees Fifty Seven lakhs ninty seven thousand nine hundred and forty only) for payment to respondent No.1 by way of compensation under Sec.357(3) of the Code. In case of default, petitioner has to undergo simple imprisonment for three months”.
3. Against the said judgment, petitioner filed SLP (Crl.) No.8479 of 2009 which was dismissed by the Supreme Court on 23.11.2009, however, time for payment was extended for a period of three months. After the above proceedings were over, petitioner submitted a petition dated 27.03.2010 described as clemency petition before the President of India for pardon. Petition was forwarded to the Central Home Department. The Government of India, Ministry of Home Affairs sent a letter to the State Government for enquiring the genuineness of the petition. The Home Department, State of Kerala sent its report informing that the petitioner is residing with his wife and three sons at Panambilly Nagar, Kochi, Kerala. Petitioner filed W.P(C) No.14918 praying for a direction to the learned Chief Judicial Magistrate not to proceed with the steps in execution of the judgment in C.C. No.437 of 2002 till disposal of the petition submitted by the petitioner to the President of India under Article 72 of the Constitution of India.
4. The learned Single Judge by judgment dated 18.05.2010 dismissed te Writ Petition against which W.A. No.829 of 2010 was filed where an interim order was granted subject to deposit of one half of the compensation ordered. The clemency petition filed by the petitioner was subsequently rejected by the President of India which was communicated to the Home Department of the Government of Kerala as well as to the petitioner on 21.07.2014. W.A. No.829 of 2010 filed by the petitioner against the judgment of the learned Single Judge dated 18.05.2010 was dismissed by the Division Bench on 15.12.2014 as infructuous noticing the fact that the basis of filing the Writ Petition, i.e., pendency of the clemency petition has been knocked out on account of dismissal of the clemency petition and the Writ Appeal has become infructuous.
5. Thereafter petitioner filed W.P(C) No.23387 of 2014 giving rise to this Writ Appeal praying for the following reliefs:
“i. To issue a writ, direction or order in the nature of certiorari calling for the records leading to Exhibit P9, communication dated 21st July, 2014 issued by the 3rd respondent.
ii. To issue a writ, direction or order in the nature of mandamus commanding the Chief Judicial Magistrate, Pathanamthitta not to proceed with the steps for apprehending the petitioner in furtherance of the judgment in C.C. No.437 of 2002 till the disposal of the clemency petition, Exhibit P1, judgment modified by Exhibit P3 judgment till the disposal of the clemency petition, Exhibit P10 petit
