IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 Crl.Rev.Pet.No. 2809 of 2004(A) ------------------------------- CRRP.34/2001 of SESSIONS COURT, PATHANAMTHITTA CC NO.626/1998 OF JUDICIAL FIRST CLASS MAGISTRATE-I, PATHANAMTHITTA .................... REVN. PETITIONER(S): 1ST COUNTER PETITIONER/ACCUSED: ---------------------------------------------------- P.C.THOMAS, LALU BHAVAN, KALANJOOR P.O., KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK. BY ADV. SRI.NIDHI BALACHANDRAN SRI.R.SREERAJ SRI.S.D.ASOKAN SRI.ANIL R. NAIR RESPONDENT(S): REVISION PETITIONER & STATE/COMPLAINANT & STATE: --------------------------------------------------------------- 1. M.T.PARAMESWARAN PILLAI, SREE KAILAS, KALANJOOR P.O., KLANJOOR MURI, KALANJOOR VILLAGE. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.SAJAN MANNALI FOR R1 SRI.M.P.JAYAKUMAR FOR R1 SRI.K.P.UNNI FOR R1 PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/07/2009, LONG WITH CRRC NO. 5 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2809 of 2004 & Crl.R.C.No.5 of 2009 -------------------------------------- Dated this the 17th day of July, 2009. ORDER Parties are referred as complainant and accused for convenience. Heard counsel on both sides and Public Prosecutor. 2. Complainant filed a private complaint in the court of learned Judicial First Class Magistrate, Pathanamthitta which was taken on file as C.C.No.626 of 1998 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Allegation is that Ext.P1, cheque dated 8.6.1998 for Rs.1,08,000/- allegedly issued by the accused was dishonoured for insufficiency of funds and inspite of service of statutory notice he did not discharge the liability. Learned magistrate recorded the evidence of the complainant, questioned the accused and after hearing both sides found that accused issued the cheque for discharge of a legally enforceable debt/liability, failed to rebut the presumption under Section 139 of the Act and thereby committed offence punishable under Section 138 of the Act. Learned magistrate sentenced accused to payment of fine of Rs.5,000/- with a default sentence. It was directed that out of fine if realized Rs.2,000/- will be paid to the complainant as compensation. Complainant being aggrieved by the sentence imposed by learned magistrate challenged the same in the Sessions Court , Pathanamthitta in Crl.R.P.No.34 of Crl.R.P.No.2809/2004 & Crl.R.C.No.5/2009 2 2001 . Learned Sessions Judge after hearing both sides while retaining the sentence of fine directed the accused to pay compensation of Rs.1,08,000/- to the complainant. A default sentence of imprisonment for six months’ was also provided. Accused is challenging the sentence imposed and direction for payment of compensation imposed by learned Sessions Judge. It is contended by learned counsel that sentence imposed by the learned Sessions Judge is illegal. 3. Conviction of the petitioner for offence punishable under Section 138 of the Act is not under challenge before me. No argument is also advanced before me concerning the correctness of conviction. On going through judgment of the learned magistrate, I do not also find reason to interfere with the conviction. What remained for consideration is only whether sentence imposed is legal and proper. 4. Going by Section 357(3) of the Code of Criminal Procedure (for short, “the Code”), a direction for payment of compensation can be made only when a sentence of imprisonment (alone) is made. In this case it is seen that without imposing a sentence of imprisonment and along with a sentence of fine, compensation has been ordered which is illegal in view of Section 357(3) of the Code. Therefore, sentence as imposed by the learned Sessions Judge cannot be sustained. 5. When Crl.R.P.No.2809 of 2004 came up for hearing before me, Crl.R.P.No.2809/2004 & Crl.R.C.No.5/2009 3 noticing the illegality in sentence imposed by learned Sessions Judge I directed the registry to register a suo motu revision against the legality of sentence. Accordingly Crl.R.C.No.5 of 2009 has been registered. Parties have appeared in that revision also. I heard counsel on both sides and Public Prosecutor in that Crl.R.C.No.5 of 2009 as well. In the light of what I have stated, the sentence as imposed by learned Sessions Judge is illegal and requires interference. 6. Evidence of complainant which learned magistrate accepted and with which the accused has no quarrel is that he issued cheque for Rs.1,08,000/- for discharge of a liability. It has been held by this Court that normally a conviction for offence under Section 138 of the Act has to be followed by a direction for payment of compensation. That is because while sentencing the accused complainant who suffered loss should not be forgotten. There is no reason why that principle should not be applied to the facts of this case. Therefore complainant is entitled to get compensation. 7. Learned counsel for complainant contends that transaction was of the year 1996 and that complainant has not received the amount until now. Considering the lapse of time and the loss caused to the complainant I am of the view that compensation payable to the complainant can be fixed as Rs.1,13,000/- which takes in the sum of Rs.5,000/- which learned Sessions Judge awarded by way of fine and compensation of Rs.1,08,000/- directed to be paid by the accused to the complainant as per order of learned Sessions Judge. Crl.R.P.No.2809/2004 & Crl.R.C.No.5/2009 4 In accordance with the provisions of Section 357(3) of the Code I also direct that accused shall suffer simple imprisonment till rising of the court. 8. Learned counsel requested that accused may be granted four months’ time to deposit the compensation. He stated about financial difficulties of the accused. Having regard to the circumstances stated by learned counsel and the amount involved and also after hearing the views of learned counsel for complainant, I am inclined to grant time as prayed for. Resultantly Crl.R.P.No.2809 of 2004 and Crl.R.C.No.5 of 2009 are allowed and accused is awarded sentence as stated hereunder: i. Accused is sentenced to undergo simple imprisonment till rising of the court. ii. Accused is directed to deposit in the trial court for payment to respondent No.1 Rs.1,13,000/- (Rupees one lakh and thirteen thousand only) as compensation under Section 357(3) of the Code on or before 17.11.2009 failing which he shall undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance of direction for deposit of compensation if petitioner paid compensation to the complainant through his counsel in the trial court and complainant filed a statement in the trial court through his counsel acknowledging receipt of compensation within the aforesaid time. It is also made clear Crl.R.P.No.2809/2004 & Crl.R.C.No.5/2009 5 that portion of compensation or fine if any deposited by the petitioner in any of the courts below will be adjusted in the compensation directed to be deposited hereby. Complainant can withdraw such amount if any in deposit. iv. Accused shall appear in the court below on 17.11.2009 to receive the sentence. Until then execution of warrant if any against the accused will stand in abeyance. Crl.M.A.No.12865 of 2004 in Cr.R.P.No.2809 of 2004 will stand dismissed. THOMAS P.JOSEPH, Judge. cks