IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 Crl.Rev.Pet.No. 1618 of 2005 ------------------------------ CC.379/2001 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA .................... REVN. PETITIONER: COMPLAINANT: --------------------------------- L. SAMUELKUTTY, S/O. T.O. LUKOSE, SAFALYA, PADINJATTEKKARA P.O., THEVALAKKARA, KOLLAM. BY ADV. SRI.S.RADHAKRISHNAN RESPONDENTS: ACCUSED: ----------------------- 1. M.S. SYAMALAKUMARI, MUSIC TEACHER GOVT.L.P. SCHOOL, KOVOOR. 2. STATE OF KERAL REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, RAM MOHAN PALACE, COCHIN-31. R2 BY PUBLIC PROSECUTOR SMT. ANEY PAUL SMT.P.V.KOCHUTHRESIA FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P. NO. 1618 OF 2005 ======================= Dated this the 23rd day of March 2011 ORDER The revision petitioner herein is the complainant in C.C.No.379/2001 on the file of the Judicial First Class Magistrate Court, Sasthamcotta. The first respondent is the accused. The revision petitioner is challenging the sentence imposed on the accused by the trial court whereby the accused was released on probation for a period of six months on executing a bond for a sum of Rs.10,000/- with two solvent sureties for the like sum each and further directed to pay a sum of Rs.25,000/- as compensation under Section 5 of the Probation of Offenders Act which according to the learned counsel for the revision petitioner was only half of the cheque amount and a flea bite. Accordingly, the sentence passed by the trial court is grossly inadequate, unreasonable and unjust, it is submitted by the learned counsel for the revision petitioner. 2. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. Learned Public Prosecutor is also heard. CRRP 1618/2005 -2- 3. The trial court after considering the evidence adduced in this case found the accused is guilty and convicted under Section 255(2) Cr.P.C. for the offence under Section 138 of the Negotiable Instruments Act and released her on probation for a period of six moths on executing a bond for a sum of Rs.10,000/- with two solvent sureties for the like sum each. The accused is further directed to pay a sum of Rs.25,000/- as compensation under Section 5 of Probation of Offenders Act. During the period of probation, the accused shall be under the direct supervision of the District Probation Officer, Kollam. 4. According to the learned counsel for the revision petitioner, the sentence imposed by the trial court against the accused is grossly inadequate, unreasonable and unjust for the reason that the complainant has not been compensated adequately. The contention raised by the defence were found against by the trial court and found that the accused was guilty for the offence under Section 138 of the N.I.Act and convicted and sentenced her thereunder. The trial court then applied the benevolent provisions of the Probation of Offenders Act and invoked Section 5 of the Probation of Offenders Act after CRRP 1618/2005 -3- considering the behaviour and incidents and other surrounding circumstances and after considering the prayer for mercy of court made by the accused while she was heard about the question of sentence. The learned counsel for the revision petitioner has relied on the decision reported in Suganthi Suresh Kumar v. Jagadheeshan, (2002)2 S.C.C.420 which reads as follows: “....in a case where the amount covered by the cheque remained unpaid it should be the look out of the trial magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light- heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount at least during the pendency of the case. CRRP 1618/2005 -4- 5. Learned counsel for the first respondent/accused submitted that an amount of Rs.25,000/- has already been deposited. She is a retired teacher and prayed to reduce the amount of compensation. It is admitted by both counsel that the criminal appeal preferred by the accused against the very same impugned judgment was dismissed by the appellate court on 28/2/2006 (vide judgment in Crl.appeal 359/2005 copy of which is incorporated in this file. 6. In these circumstances, I find that the guilty and conviction entered against the accused/first respondent herein is liable to be confirmed and the sentence ordered by the courts below is liable to be modified. Ext.P1 cheque is dated 26/9/2000 for Rs.50,000/-. About 10 years is already over. Considering this aspect, I find that the complainant should be adequately compensated and the sentence should be modified for imprisonment till rising of court and that the accused is liable to pay total amount of Rs.50,000/-i.e. the cheque amount to the revision petitioner/complainant as compensation under Section 357(3)Cr.P.C. The accused/first respondent can be granted four months time to deposit the balance amount of Rs.25,000/- if CRRP 1618/2005 -5- Rs.25,000/- is already deposited by the accused as submitted by the learned counsel for the first respondent/accused, and in default to undergo simple imprisonment for two months. 7. In the result, a) This revision petition is allowed in part. b) The verdict of guilty and conviction of the accused under Section 255(2)Cr.P.C. for offence under Section 138 of the Negotiable Instruments Act are confirmed. (c) But the sentence imposed is modified. In supersession of the sentence imposed on the accused by the courts below, the accused/first respondent is sentenced to undergo imprisonment till rising of court. She is further directed under Section 357(3) Cr.P.C to pay/deposit the total amount of Rs.50,000/- (Rupees twenty five thousand only) (less the amount if already deposited/paid) as compensation within four months and in default to undergo simple imprisonment for a period of two months. The amount in deposit, if any, and the balance amount if deposited shall be released to the complainant on proper application. The accused shall have time till 23/7/2011 to pay/deposit the amount of Rs.50,000/- (less the amount if CRRP 1618/2005 -6- any, already paid/deposited)as compensation and thus avoid the default sentence. The first respondent/accused shall appear and her sureties shall produce her before the learned Magistrate on 25/07/2011 for execution of the sentence. M.C. HARI RANI JUDGE ks.