IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 CRL.REV.PET.NO. 1592 OF 2009() ------------------------------------------- CRA.746/2008 OF ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.167/2008 OF JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S): ACCUSED -------------------------------------------- ANSHAD.P, S/O. K.M. PAREETH, KALARICKAL HOUSE, KADAVOOR.P.O, PAINGOTTOOR BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------- 1. M/S. GATEWAY AUTO FINANCE, KOTHAMANGALAM, REPRESENTED BY ITS WORKING PARTNER, THOMAS.A GEEVARGHESE, AGED 59 YEARS, KALLUNGAL HOUSE, PUTHUPPADY, KOTHAMANGALAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.VINUCHAND FOR R1 BY PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2009, ALONG WITH CRRC NO. 2 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1592 of 2009 AND CRL.R.C. No. 2 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of July, 2009 O R D E R -------------- Criminal revision petition is at the instance of the accused in C.C.No.167 of 2008 of the court of leaned Judicial First Class Magistrate-I, Muvattuphza. 2. Petitioner faced trial for offence punishable under Section 138 of the Negotiable Instruments Act, was convicted and sentenced to undergo simple imprisonment till rising of the court and directed to pay compensation of Rs.1,15,000/- with interest at the rate of 6% per annum from 30.4.2007 till payment. In default of payment six months’ simple imprisonment was also provided. Learned Additional Sessions Judge confirmed conviction but modified the sentence. As it now stands there is only a direction for payment of compensation of Rs.1,15,000/- without a default sentence. Noting the apparent illegality in directing payment of compensation without sentence of imprisonment and without a default imprisonment, this Court initiated suo moto revision and registered Crl.R.C. No.2 of 2009. Petitioner in Crl.R.P. No.1592 of 2009 received notice in Crl.R.C. No.2 of 2009. CRL. R.P. No.15892 of 2009 & CRL. R.C. No.2 of 2009 -: 2 :- 3. According to respondent No.1 petitioner had executed a hire purchase agreement on 25.7.209 in its favour for hiring a vehicle undertaking to pay the hire amount in installments but defaulted repayment of the amount. For repayment of the sum of Rs.1,15,000/- due petitioner issued Ext.P1, cheque dated 30.4.2007. Dishonour of that cheque for insufficiency of funds is not challenged and is proved by Exts.P5 and P6. Service of statutory notice on petitioner is not disputed and is proved by Exts.P7 and P8. P.W.1 gave evidence on behalf of respondent No.1. According to the petitioner no such amount is due and at the time of executing the agreement a signed blank cheque was obtained by respondent No.1 which was misused. Petitioner did not adduce evidence or bring out circumstances to prove or probabilise that contention. Courts below after consideration of the evidence of P.W.1 found that there is no reason to disbelieve his evidence. Failure of petitioner to reply to the statutory notice was also taken note of. On going through the judgments under challenge and hearing counsel I find no reason to interfere with the concurrent finding regarding the due execution of the cheque in discharge of legally enforceable debt/liability. 4. As it now stands there is only a direction for payment of CRL. R.P. No.15892 of 2009 & CRL. R.C. No.2 of 2009 -: 3 :- compensation of Rs.1,15,000/- to respondent No.1. Under Section 357(3) of the Code of Criminal Procedure the direction for payment of compensation should follow a sentence of imprisonment. Direction for payment of compensation cannot be taken as sentence as understood in law. In so far as no sentence of imprisonment is imposed by the learned Additional Sessions Judge and in so far as no default sentence of imprisonment is provided while directing payment of compensation an illegality has been committed by the learned Additional Sessions Judge which is required to be corrected by this Court under Section 401 of the Code. Having regard to the nature of the offence and circumstances stated by learned counsel I find that simple imprisonment till rising of the court and compensation as awarded by the appellate court are sufficient in the ends of justice. 5. Learned counsel referred to the financial difficulties of the petitioner in raising the amount immediately. Having regard to the amount involved and circumstances stated by learned counsel I am inclined to grant time till 30.12.2009 to deposit the compensation in the trial court. Resultantly, Crl. Revision Petition No.1592 of 2009 is dismissed. Criminal Revision Case is allowed to the following extent: CRL. R.P. No.15892 of 2009 & CRL. R.C. No.2 of 2009 -: 4 :- (i) Petitioner is sentenced to undergo simple imprisonment till rising of the court. (ii) While retaining the direction for payment of compensation of Rs.1,15,000/- (Rupees One lakh and fifteen thousand only) to respondent No.1, petitioner is granted time till 30.12.2009 to deposit such amount in the trial court failing which he shall undergo simple imprisonment for two months. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv