IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1490 of 2001 ------------------------------ ( CRA.32/1996 of SESSIONS COURT, PALAKKAD ST.3153/1994 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR ) REVN. PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------- ABDUL NAZAR, S/O. ABDUL RAHIMAN, KUNNATHU HOUSE, PATTAMBI, PALLIPPURAM AMSOM, KIZHAYUR DESOM, OTTAPPALAM TALUK. BY ADV. SRI.P.VIJAYA BHANU AND ADV. SMT.P.MAYA RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ----------------------------------------------------------------- 1. SIVARAMAN, S/O. KUNJANDI, M.K. KALATHIL, PUTHUNAGARAM, CHITTUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.JACOB SEBASTIAN R2 BY PUBLIC PROSECUTOR ADV. SMT. M.K. PUSHPALATHA. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL.R.P. No. 1490 of 2001 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 3rd day of December, 2008 O R D E R -------------- First respondent and counsel are absent. There is no representation also. Heard learned counsel for revision petitioner. 2. Following points arise for consideration: (i) Whether the conviction of revision petitioner is proper? And (ii) Regarding legality of sentence Point No.1: 3. According to the first respondent, revision petitioner borrowed Rs.15,000/- from him undertaking to repay it within 15 days. He demanded repayment of the amount after one month and then revision petitioner issued Exhibit P1, cheque dated 2.5.1995. He presented the cheque for encashment but it was returned for insufficiency of funds as proved by P.W.2 and Exhibits P2 and P6. First respondent issued notice to the revision petitioner intimating dishonour and demanding payment. Notice was returned refused. Exhibit P3 is copy of notice. Exhibit P5 is postal receipt for sending the notice by registered post. Exhibit P6 is notice returned refused. Exhibit P6 contained the endorsement of the postman that it was CRL. R.P. No.1490 of 2001 -: 2 :- refused and hence it is returned to the sender. That amounts to deemed service of notice. 4. So far as due execution of the cheque is concerned, contention raised by the revision petitioner is that at a time when he was hard press for money, he approached one Viswanathan a friend of him who was working in the forest office at Parambikulam. Viswanathan agreed to arrange finance and accordingly he gave a signed blank cheque to Viswanathan. Later he learned that Viswanathan is no more. 5. First respondent gave evidence as P.W.1 and testified to his case. Revision petitioner examined D.W.1. As per the version of D.W.1, he got acquaintance with first respondent through Viswanathan at the DCC office at Palakkad. He filled up Exhibit P1 in the name of the first respondent as requested by the latter. Courts below did not accept the version of D.W.1 and found the revision petitioner guilty. According to counsel for revision petitioner, evidence of D.W.1 was rejected without sufficient reason. 6. Though revision petitioner has a case that Viswanathan promised to arrange finance to him and he handed over the cheque to Viswanathan who is not alive. what D.W.1 stated is only that as CRL. R.P. No.1490 of 2001 -: 3 :- requested by the first respondent he wrote the name of payee in Exhibit P1. But he has not spoken about the case of the revision petitioner. Even if it is assumed that D.W.1 had written the name of the payee in Exhibit P1, that does not in any way improve the case of the revision petitioner, for, first respondent has no case that name of payee was written by the revision petitioner. Instead, he claimed that revision petitioner signed the cheque in his presence. On going through the evidence, I find nothing illegal or irregular in the courts below refusing to place reliance on the evidence of D.W.1. That, Exhibit P1 contain signature of revision petitioner is not disputed. Normally one cannot expect a person to give a signed blank cheque to anybody. Revision petitioner has not proved or even probabilised his version that he handed over a signed blank cheque to Viswanathan. That, he refused to accept the notice sent on behalf of the first respondent eloquently indicate that he was aware of the claim being made by the first respondent. In these circumstances courts below were justified in placing reliance on evidence of the first respondent to hold that the revision petitioner issued cheque in favour of the first respondent to discharge the debt. Revision petitioner was not successful in rebutting presumption under Section 139 of the Act. CRL. R.P. No.1490 of 2001 -: 4 :- Conviction therefore cannot be assailed. Point No.2: 7. Learned magistrate sentenced revision petitioner to pay fine of Rs.30,000/- with a direction that out of the fine if realised Rs.25,000/-, has to be given to the first respondent as compensation. In appeal the learned Sessions Judge interfered with the sentence and directed that revision petitioner shall pay fine of Rs.5,000/- and also pay compensation of Rs.20,000/-. This in my view is illegal since under Section 357(3) of the Code of Criminal Procedure compensation can be ordered only when fine does not form part of the sentence. In other words, there cannot be any direction for payment of compensation along with a sentence of fine. Hence sentence as modified by learned Sessions Judge is illegal and cannot be sustained. Since learned magistrate was not competent to impose fine of Rs.30,000/- as on the date of commission of offence, the case cannot be remanded to the appellate court to award proper sentence. Proper course is to remit the case to the trial court to award sentence in accordance with law as in force on the date of commission of the offence. Resultantly, this revision petition is allowed in the following lines: CRL. R.P. No.1490 of 2001 -: 5 :- (i) Revision petition to the extent it concerned the conviction of revision petitioner is dismissed. (ii) Sentence imposed on revision petitioner is set aside and the case is remitted to the court of Judicial First Class Magistrate, Chittur to award proper sentence in the light of the observations made above. (iii) Parties are directed to appear in the court of Judicial First Class Magistrate, Chittur on 10.2.2009. Bail bond shall stand cancelled. Criminal Miscellaneous Petition No.6952 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL.R.P. NO.1490 OF 2001 =================== O R D E R 3RD DECEMBER, 2008