IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 Crl.Rev.Pet.No. 2739 of 2009() ------------------------------ CRA. 157/2008 & 162/2008 OF ADDL.DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-II),KOZHIKODE. CC.212/2004 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------- 1. SIVADASAN T.K. AGED 46 YEARS, S/O. RAGHAVA PANICKER, KARTHIKA POOCHERIKKUNNU, MANNOOR P.O. KOZHIKODE DISTRICT. 2. KALLIDUMBIL VELAYUDHANKUTTY, S/O. RARU, AGED 67 YEARS, KUNNUMMEL HOUSE, PERINGAVU P.O. RAMANATTUKARA, KOZHIKODE DISTRICT BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT(S)/RESPONDENTS/COMPLAINANT/STATE -------------------------------- 1. THE SUB INSPECTOR OF POLICE, FEROKE, 2. THE STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2739 of 2009 -------------------------------------- Dated this the 26th day of August, 2009. ORDER As per the prosecution case on 29.4.2003 at about 4 p.m. petitioners/accused Nos.1 and 2 induced the defacto complainant (PW1) to deliver coconut to them and on that occasion petitioners paid Rs.21,809/- to the defacto complainant. On 19.7.2003 petitioners handed over Ext.P2, cheque to the defacto complainant for payment of balance sum of Rs.60,000/-. When that cheque was presented for encashment it turned out that petitioner No.1 who professed to have an account with the drawee bank and on which the cheque was drawn did not have any such account and instead the cheque was drawn on the account of father of petitioner No.1 who had expired prior to that date. Alleging that he has been cheated defacto complainant filed a complaint in the court of Judicial First Class Magistrate-V, Kozhikode for offences punishable under Sections 415, 418 and 420 read with Section 34 of the Indian Penal Code (for short, “the IPC”). Prosecution examined PWs 1 to 7 and proved Exts.P1 to P5. Learned magistrate accepted the case of prosecution and found petitioners guilty. But it is seen that there is a conviction and sentence under Sections 415 and 420 of the IPC. Petitioners preferred separate appeals before the Sessions Court, Kozhikode. Learned Additional Sessions Judge,Fast Track(Adhoc-II) by a common judgment dismissed the appeals. Hence this revision at the instance of the petitioners. Crl.R.P.No.2739/2009 2 2. Evidence of defacto complainant as PW1 and his witnesses, PWs 2 and 4 is to the effect that on 29.4.2003 at about 4 p.m. petitioners approached the defacto complainant (PW1) with an offer to purchase coconuts from him and there was an agreement of sale. Pursuant to that agreement petitioners paid Rs.21,809/- to the defacto complainant agreeing to pay the balance amount immediately. On 19.7.2007 petitioners issued Ext.P2, the cheque in question. Evidence of prosecution witnesses show that petitioner No.1 had signed the cheque in the presence of defacto complainant and others. Thus, there is evidence to show that for payment of the balance amount due in respect of the transaction, petitioner No.1 issued the cheque in question and that petitioner No.2 was also a party to that. PW3, Secretary of the drawee bank has proved that the cheque was actually drawn on the account maintained by the deceased father of petitioner No.1. Ext.P3 is the memo returning the cheque. It is seen from the evidence of PW3 and Ext.P3 that cheque was dishonoured for insufficiency of funds and since the signature of the drawer differed from the signature of the holder of the account. It has come out in evidence that even prior to the transaction father of petitioner No.1 had expired. It is in the above circumstances courts below found against the petitioners. 3. It is true that as on the date on which the cheque was given to the defacto complainant, there was no delivery of property. Learned magistrate found that the transaction itself was the result of deceitful intention of the petitioners. Learned magistrate has referred to the various circumstances which Crl.R.P.No.2739/2009 3 persuaded him to conclude so. That has been confirmed by the appellate court. On these facts and circumstances I do not find reason to interfere with conviction of petitioners. 4. It is seen that petitioners are convicted and sentenced for offences punishable under Sections 415 and 420 of the IPC. Section 415 of the IPC is only a defining section. Penalizing provision is Section 420 of the IPC. Therefore conviction and sentence under Section 415 of the IPC cannot be sustained and is liable to be set aside. 5. So far as sentence awarded for offence punishable under Section 420 of the IPC, rigorous imprisonment for one year and payment of Rs.1,000/- is concerned, learned counsel has requested for leniency. It is seen from the judgment of the appellate court that the defacto complainant was even prepared to settle the case if he were given the amount covered by the cheque. True, the petitioners committed an offence which is serious in nature. It is however seen that petitioners are not involved in any other case. In these circumstances I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. 6. At the same time PW1, the defacto complainant who suffered loss has to be compensated. The agricultural produce belonging to him was purchased by the petitioners and it is for payment of its price the cheque in Crl.R.P.No.2739/2009 4 question was given. There is no case or evidence to show that balance amount payable to PW1 was ever paid. In these circumstances I direct the petitioners to pay compensation of Rs.65,000/- to PW1, the defacto complainant. Resultantly, this revision petition is allowed in part to the following extent: i. Conviction and sentence of petitioners for offence punishable under Section 415 of the IPC are set aside. ii. While retaining conviction of petitioners for offence punishable under Section 420 of the IPC, sentence awarded to them is modified as below: (a) Substantive sentence is modified as simple imprisonment till rising of the court. (b) Sentence of fine imposed on petitioners is set aside. Fine if any remitted shall be refunded to petitioners on application. (c) Petitioner No.1 is directed to deposit in the trial court for payment to defacto complainant, PW1 Rs.32,500/- (Rupees Thirtytwo thousand and five hundred only) by way of compensation under Section 357(3) of the Code of Criminal Procedure on or before 15.12.2009 failing which he shall undergo simple imprisonment for four months. Crl.R.P.No.2739/2009 5 (d) Petitioner No.2 is directed to deposit in the trial court for payment to defacto complainant, PW1 Rs.32,500/- (Rupees Thirtytwo thousand and five hundred only) by way of compensation under Section 357(3) of the Code of Criminal Procedure on or before 15.12.2009 failing which he shall undergo simple imprisonment for four months. Petitioners shall appear in the trial court on 17.12.2009 to receive the sentence. Until then execution of warrant if any against the petitioners will stand in abeyance. THOMAS P.JOSEPH, Judge. cks