IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 Crl.Rev.Pet.No. 442 of 2009() ----------------------------- CRA.693/2008 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.822/2005 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERUMBAVOOR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- J.KURUVILLA, S/O.JOHN, ILLIPARAMBIL HOUSE, RAJAMANGALAM P.O., KURUPPAMPADY, ERNAKULAM. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------- 1. K.V.BENNY, S/O.VARGHESE, KARIPANA HOUSE, KURUPPAMPADY, PERUMBAVOOR, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISNNAN FOR R2 SRI.SHIJU VARGHEESE FOR R1 SRIPRAMOJ ABRAHAM FOR R1 SRI.RENDEEP PREM FOR R1 SRI.VINUCHAND FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/07/2009, ALONG WITH CRL.R.P.NO.2020/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.Nos.442 of 2009 & 2020 of 2009 -------------------------------------- Dated this the 31st day of July, 2009. ORDER These revisions arise from judgment of learned Additional Sessions (Adhoc-I), Ernakulam in Crl.Appeal No.693 of 2008 arising from judgment of learned Judicial First Class Magistrate-II, Perumbavoor in C.C.No.822 of 2005. Parties are referred as complainant and accused for convenience. 2. According to the complainant, accused borrowed Rs.50,000/- from him in April, 2004 and on his demanding repayment issued cheque dated 28.4.2005. That cheque was dishonoured as account was closed. After serving statutory notice on petitioner complainant launched prosecution for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) and examined himself as PW1. PW2 is manager of drawee bank. Complainant proved Exts.P1 to P8 and Exts.X1 and X2. Accused contended that he had borrowed Rs.10,000/- from complainant years back and given a signed blank cheque as security. He claimed to have repaid the amount. In the course of evidence he denied that the cheque in question was drawn on the account maintained by him. He examined DW1 to prove his case. Learned magistrate found in favour of the case pleaded by complainant and convicted the accused. He was sentenced to undergo simple imprisonment for three Crl.R.P.Nos.442 & 2020/2009 2 months and payment of compensation of Rs.50,000/- and in default of payment to undergo further simple imprisonment for three months. Accused took up the matter in appeal. Learned Additional Sessions Judge while confirming conviction set aside substantive sentence and retained direction for payment of compensation but without a default sentence. Complainant is aggrieved and has preferred Crl.R.P.No.2020 of 2009 while conviction and direction for payment of compensation are challenged by accused in Crl.R.P.No.442 of 2009. It is contended by learned counsel for accused that due execution of the cheque is not proved and that there is no evidence to show that the cheque was drawn on the account maintained by accused. Further contention of learned counsel is that courts below did not even consider the evidence of DW1. Learned counsel for complainant would contend that there are sufficient materials on record to support the conclusion reached by the courts below. 3. I have gone through the judgments under challenge. It is seen that learned Additional Sessions Judge has not referred to the evidence given by DW1. There is not even a whisper in the judgment about the evidence of DW1. So far as judgment of learned magistrate is concerned, it is seen that in the appendix, there is no mention that a defence witness was examined. In paragraph 10 of the judgment it is written in ink over the typewritten lines that “evidence spoken by DW1 is not trustworthy or inspired my confidence. DW1 would depose that only once in 1988 he saw PW1”. That writing in ink appears to have been written after the judgment was typewritten. There is force in the Crl.R.P.Nos.442 & 2020/2009 3 contention of learned counsel that evidence let in by the accused through DW1 was not considered or appreciated by courts below. When the accused has adduced evidence court is bound to consider it whether it is accepted or not and in either case court has to state its reason for holding so. Since that has not happened in this case, judgments under challenge suffer from a serious illegality. 4. Yet another illegality is that learned Additional Sessions Judge has not imposed a sentence following confirmation of conviction. A direction for payment of compensation is not a sentence. It is something which is done to compensate the party who suffered loss, in addition to the sentence imposed on the offender following conviction. This is clear from Section 357(3) of the Code of Criminal Procedure which states that there could be a direction for payment of compensation only when there is a sentence of imprisonment. Further it is seen that learned Additional Sessions Judge has not imposed default sentence for non-payment of compensation. It is by now settled that courts are vested with the power to impose default sentence for non-payment of compensation. In the light of above illegalities proper course is to set aside the judgment of the appellate court and remit the case to that court for fresh disposal of the appeal after consideration of the entire evidence on record. Crl.R.P.Nos.442 & 2020/2009 4 Resultantly, these revisions are allowed. Judgment of learned Additional Sessions Judge (Adhoc-I), Ernakulam is set aside and case is remitted to that court for fresh consideration and disposal. Learned Additional Sessions Judge is directed to expedite the disposal of the appeal. Parties shall appear in the court below on 28.8.2009. Crl.M.A.No.1334 of 2009 in Crl.R.P.No.442 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks