IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR.JUSTICE THOMAS P. JOSEPH THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 Crl.Rev.Pet.No. 387 of 2005() ----------------------------- CRA.74/2003 of THE ADDITIONAL SESSIONS JUDGE (ADHOC)II, KASARAGODE IN CC.317/2000 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- K.M.IBRAHIM, S/O.LATE MOHAMMED HAJI, DOWN ROAD, UDAYAVAR, KUNJATHUR, MANJESHWAR VIA. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT & STATE: --------------- 1. K.P.MOHAMMED, S/O.PODIYABBA HAJI, HAJI COMPOUND, UDAYAVAR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.V.BALAKRISHNA IYER (SR.) FOR R1 SRI.K.JAYAKUMAR FOR R1 SRI.HARISH R. MENON FOR R1 SRI.R.SURAJ KUMAR FOR R1 PUBLIC PROSECUTOR, SRI.NOBLE MATHEW THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & THOMAS P. JOSEPH, JJ. ---------------------------------------- Crl.R.P.No.387 OF 2005 ---------------------------------------- Dated this the 1st day of January, 2009 O R D E R ~~~~~~~ Balakrishnan Nair, J. The revision petitioner was the appellant in Criminal Appeal No.74/2003 on the file of the Court of Additional Sessions Judge (Adhoc)II, Kasaragode. The appeal was directed against the conviction and sentence imposed on the appellant in C.C.NO.317/2000 by the Chief Judicial Magistrate, Kasaragode. 2. The brief facts of the case are the following: The appellant issued a cheque to the 1st respondent herein for an amount of Rs.95,000/-. It was in discharge of a legally enforceable debt. But, when the cheque was presented by the 1st respondent, it was dishonoured on the ground that there was not sufficient funds in the account of the revision petitioner. The respondent issued statutory notice within the prescribed time limit intimating about the dishonour of the cheque and also calling upon the petitioner to pay the amount due. But the Cr.R.P.No.387/2005 2 petitioner failed to pay the amount in time. Therefore the complaint was filed. On appearance, the petitioner pleaded not guilty to the accusation read out to him. From the side of the respondent, he got himself examined as PW1 and Exts.P1 to P5 were marked. From the side of the petitioner no defence evidence was tendered. Considering the evidence on recored, the trial court found that the accused has committed the offence under Section 138 of the Negotiable Instruments Act and he was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,05,000/-. In default of payment of the fine it was ordered that he shall undergo rigorous imprisonment for a further period of three months. If fine was realised it was ordered that Rs.1,00,000/- shall be paid as compensation to the respondent/complainant. 3. The revision petitioner aggrieved by the said judgment, filed Criminal Appeal No.74/2003. The appellate court confirmed the conviction of the revision petitioner. But, reduced the sentence. It was ordered that the petitioner shall suffer imprisonment for a period of one month and also to pay a Cr.R.P.No.387/2005 3 fine of Rs.95,000/-. In default, he has to undergo imprisonment for a further period of two months. The petitioner challenges the conviction and sentence imposed on him by the appellate court. At the time of hearing, the petitioner contended that there are conflicting decisions of the Apex Court concerning awarding of sentence of imprisonment for the default to pay compensation ordered under Section 357 (3) of the Cr.P.C. It was pointed out that in Hari Kishan Harising and State of Haryana v. Sukhbir Singh and others [AIR 1988 SC 2127] and in Suganthi Suresh Kumar v. Jagdeeshan [AIR 2002 SC 681], the Apex Court held that if there is default to pay the compensation ordered, there can be a direction for default sentence also. But, In Ahammedkutty v. Abdullakoya [2008(1) KLT 851], the Apex Court took a different view. It was held that there cannot be any default sentence for the default to pay compensation under Section 357 (3) of the Cr.P.C. The amount defaulted in such cases can be recovered as if it is a fine, as per Section 421 of the the Code of Criminal Procedure, it was held. Considering these three decisions, a learned Single Judge of this Court in Ganga C. v. Lakshmi Ammal and Another Cr.R.P.No.387/2005 4 [2008(2) KHC 364] held that the lower courts in the State should follow the earlier decisions of the Apex Court and not the decision in Ahammedkutty v.Abdullakoya. The learned judge, who heard this revision felt that such a direction from the High Court may not be appropriate, as normally, the courts below are bound to follow the decisions latest in point of time. Based on the said view taken, the learned Judge referred the matter for consideration by a Division Bench. 4. We heard the learned counsel on both sides. We notice that in the judgment of the Sessions Court in Criminal Appeal No.74/2003, there is no direction to pay the compensation under Section 357(3) of the Cr.P.C., but, only a direction under Section 357 (1). Therefore, the point referred by the learned Single Judge for resolution by the Division Bench does not arise in this case. If we decide that point, it will be a decision on a hypothetical issue. Courts are not supposed to decide a hypothetical question. Even if such a decision is taken, the same will be treated as obiter dicta and will not bind any one. Cr.R.P.No.387/2005 5 Now coming to the merits of the case, we notice that the finding of guilt against the petitioner is made concurrently by both the courts. The same is done based on the evidence adduced before it. No ground has been urged before us to take a different view. But, the learned counsel for the revision petitioner submitted that the punishment is too harsh and therefore it may be substituted by a sentence of imprisonment till the rising of the court. We find it difficult to accept the above contention of the learned counsel for the appellant. We are of the view that the appellate court was very liberal in awarding the sentence. Therefore, we find no reason to interfere with the same. In the result, the Criminal Revision Petition fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (THOMAS P. JOSEPH, JUDGE) ps