IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Crl.Rev.Pet.No. 2593 of 2009() ------------------------------ CRA.826/2008 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.184/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED ------------------------------------------------- K.USHA, AGED 45, W/O.GOKUL DAS, 11/163 PARUTHITHARA, DR.AMBEDKAR ROAD, EDAKOCHI. BY ADV. SRI.G.KRISHNAKUMAR SMT.M.P.RETHNAM SRI.M.MANOJ KUMAR MALLIA RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE ------------------------------------ 1. A.A.ABDUL GAFOOR, S/O.ABOO, CC23/849 A, ALANGAD, THANGAL NAGAR, PALLURUTHY, KOCHI. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11/08/2009, ALONG WITH CRRC NO. 16 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2593 of 2009 & Crl.R.C.No.16 of 2009 -------------------------------------- Dated this the 11th day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-I), Ernakulam in Crl.Appeal No.826 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). It is the case of respondent No.1 that petitioner issued Ext.P1, cheque for the discharge of a liability towards him and that cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6 series. Respondent No.1 gave evidence as PW1 and claimed that petitioner borrowed Rs.50,000/- from him and for repayment of that amount issued the cheque. Petitioner when questioned under Section 313 of the Code of Criminal Procedure (for short, “the Code”) denied that she had any transaction with respondent No.1. Courts below found in favour of due execution of the cheque. 3. Though a contention is raised that payment of loan to the petitioner Crl.R.P.No.2593/2009 & Crl.R.C.No.16/2009 2 is in violation of Section 269 SS of the Income Tax Act, learned counsel submitted that contention is not pressed in this revision. 4. So far as transaction leading to execution of the cheque is concerned there is evidence of respondent No.1 which was not cross-examined. Learned magistrate has observed that inspite of giving sufficient opportunity petitioner has not cross-examined respondent No.1. It is not disputed that Ext.P1 is drawn on the account maintained by petitioner. Petitioner has not replied to the notice served on her. In these circumstances courts below found no reason to disbelieve respondent No.1. I find no reason to differ from the finding of the courts below regarding due execution of the cheque. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for six months and payment of fine of Rs.50,000/- with a default sentence of imprisonment for six months. Learned Additional Sessions Judge modified the substantive sentence as simple imprisonment till rising of the court and converted fine as compensation of Rs.50,000/- payable to respondent No.1 but did not provide any default sentence. Noting that there was an illegality, irregularity or impropriety in the judgment of learned Additional Sessions Judge in that no default sentence was provided for non-payment of compensation, this Court in exercise of its power under Section 401 of the Code registered suo motu revision as Crl.R.C.No.16 of 2009 and notice was given to the petitioner herein. Notice to respondent No.1 was dispensed with in view of the order I proposed to pass in this revision. Learned counsel for petitioner contended that Crl.R.P.No.2593/2009 & Crl.R.C.No.16/2009 3 this is not a case where appellate court has not committed any illegality, irregularity or impropriety warranting exercise of suo motu revisional power under Section 401 of the Code. Learned counsel has placed reliance on the decision of this Court in Bhaskaran Nair v. Abdul Kareem [2006 (4) KLT 48]. 6. The power of revision is conferred on this court being the superior criminal court vested with a supervisory power. While exercising that power it is open to the superior court to correct any illegality, irregularity, impropriety or incorrectness in the proceeding or the order passed by the subordinate criminal court. The question for consideration is whether in this case there is any such circumstances warranting interference. What this Court held in Bhaskaran Nair’s case (referred supra) in paragraph 8 is that any and every error, assuming that an error has been committed by the courts below is not sufficient justification for invoking revisional power. The conscience of the court must be satisfied that there is illegality, irregularity, impropriety or incorrectness and that such vice in turn leads to miscarriage of justice to justify such invocation of revisional power. In otherwords if there is illegality, irregularity, impropriety or incorrectness which leads to miscarriage of justice, it is open to the revisional court to exercise its revisional power to correct such miscarriage of justice. 7. The very object of incorporating Section 138 of the Act is to give credibility for transactions as per cheques. The Legislature has also by Amendment of 2003 provided that it is well within the power of the court to Crl.R.P.No.2593/2009 & Crl.R.C.No.16/2009 4 order fine double the amount covered by the cheque. That also was intended to compensate the loss caused to the payee or the holder in due course. True, the court has discretionary power to award appropriate sentence but at the same time it is also to be borne in mind that the discretion is the power of court to administer justice. Discretion cannot be exercised arbitrarily. Therefore, the question for consideration is whether appellate court has exercised proper discretion in not awarding default sentence while directing payment of compensation. I stated that learned magistrate has imposed a substantive sentence of imprisonment for six months and fine of Rs.50,000/- with default sentence of imprisonment for six months. Appellate court after consideration of the relevant aspects came to the conclusion that it is not necessary to impose a sentence of imprisonment for six months and modified it as simple imprisonment till rising of the court. Well, that was within the discretionary power of the court. It was also within the power of that court to convert sentence of fine into a direction for payment of compensation. But, the appellate court has not without assigning any reason imposed default sentence inspite of the fact that courts are vested with the power to order default sentence to enforce payment of compensation. That was the view consistently taken by the Supreme Court right from Hari Kishan & State of Haryana v. Sukhbir Singh [AIR 1988 SC 2127]. Recently the Supreme Court has held in Vijayan v. Sadanandan, K. and another [ILR 2009 (3) Kerala 1] that the court can impose default sentence for non-payment of compensation. Reading these Crl.R.P.No.2593/2009 & Crl.R.C.No.16/2009 5 decisions it is seen that default sentence is imposed not as a punishment but as a mode for enforcement of the order for payment of compensation. The court which is invested with the power to order compensation has also to ensure that compensation is paid by the party obliged to pay as per its order. Learned Additional Sessions Judge has not ensured that the order for payment of compensation is complied. That works out injustice to respondent No.1 who has been fighting the case from 2006 onwards. On consideration of these principles I am satisfied that injustice has been committed by the appellate court in not providing default sentence after directing payment of compensation. Revisional court is empowered and required to correct that injustice. In the facts and circumstances of the case I am satisfied that a simple imprisonment for one month has to be provided for non-payment of compensation. 8. Learned counsel requested that petitioner may be granted five months’ time to deposit compensation. Learned counsel states that petitioner is not able to raise the entire amount immediately. Having regard to the circumstances stated by learned counsel and the amount involved, petitioner is granted time till 11.1.2010 to deposit compensation. Resultantly Crl.R.P. No.2593 of 2009 fails. It is dismissed. Crl.R.C.No.16 of 2009 is allowed and following directions are issued:- i. Substantive sentence as modified by the appellate court is retained. ii. Petitioner is granted time till 11.1.2010 to deposit Crl.R.P.No.2593/2009 & Crl.R.C.No.16/2009 6 compensation of Rs.50,000/- (Rupees fifty thousand only) as ordered by the appellate court in the trial court failing which petitioner has to undergo simple imprisonment for one month. iii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the above said period. Petitioner shall appear in the trial court on 12.1.2010 to receive the sentence. Until then execution of warrant if any will stand in abeyance. THOMAS P.JOSEPH, Judge. cks