IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 Crl.Rev.Pet.No. 2415 of 2009() ------------------------------ CRA.831/2007 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM ST.988/2006 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- ALI.M.K., AGED 67 YEARS, S/O.MUHAMMED HAJI, MANNILTHODIKURKKANPURATH, NEAR PALLIPPADI, L.P.SCHOOL, KIZHOPARAMBA P.O., AREEKODE. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S)/RESPONDENTS/ COMPLAINANT AND STATE -------------------------- 1. MUTHOOT LEASING AND FINANCE COMPANY LTD., COMPANY REGISTERED UNDER THE COMPANIES ACT HAVING ITS REGISTERED OFFICE AT MUTHOOT CHAMBERS, OPPOSITE SARITHA THEATRE COMPLEX, BANERJI ROAD, KOCHI-682 018, REPRESENTED BY ITS LEGAL OFFICER. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, SESSION COURT, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 SRI.C.S.MANILAL FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2415 OF 2009 -------------------------------------- Dated this the 29th day of July, 2009. ORDER Heard counsel on both sides and Public Prosecutor. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-I), Ernakulam in Crl.Appeal No.831 of 2007 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.1, a private limited company claimed that petitioner availed a vehicle loan from it as per a hire purchase transaction, owed Rs.2,06,800/- and for the discharge of that liability issued Ext.P2, cheque dated 7.3.2006. Dishonour of that cheque for insufficiency of funds is proved by Ext.P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Ext.P7 is the reply. Representative of respondent No.1 gave evidence as PW1. Ext.P1 is the certified copy of the power of attorney in favour of PW1 executed by respondent No.1. Petitioner contended that no such amount is due to respondent No.1 and that the entire transaction was closed. It is the contention of petitioner that the vehicle met with an accident and was entrusted to PVS Automobiles for repair as instructed by respondent No.1. It is also the contention of petitioner that the vehicle was repossessed by respondent No.1 and sold without notice to him. Signed blank cheque leaf taken at the time of availing loan has been misused. Arbitration proceeding is pending in the District Court, Ernakulam. Exts.D1 and D2 are certified copy of certificate of insurance and invoice, respectively issued Crl.R.P.No.2415/2009 2 from M/s.PVS Automobiles. Courts below found in favour of due execution of the cheque and convicted petitioner. It is contended by learned counsel that due execution of the cheque is not proved. Further it is contended that in view of Exts.D1 and D2 courts below had to find that no amount was due to respondent No.1. 3. It is true that due execution of the cheque as such is denied by petitioner in that according to him, signed blank cheque given by him was misused. It also true that admission of petitioner that the cheque contained his signature did not amount to admission of due execution of the cheque as an instrument. When that is disputed, certainly obligation was on respondent No.1 to prove that. Question is whether such evidence is adduced by respondent No.1. PW1 is the legal officer and power of attorney holder of respondent No.1. She has given evidence regarding the transaction and execution of the cheque. It is true that in the chief affidavit she only stated that “in discharge of the liability of the accused towards the complainant. He has issued a cheque bearing number 473291 dated 7.3.2006 drawn on Federal Bank Ltd., Cherutty road, Kozhikode for an amount of Rs.2,06,800/- (Rupees Two lakhs six thousand and eight hundred only) with specific assurance that it will be encashed on presentation and complainant believed the representation made by the accused.” The cheque produced was marked in chief affidavit. When PW1 stated in the chief affidavit that petitioner issued the cheque dated 7.3.2006 for discharge of liability, I am not inclined to think that a further statement that the Crl.R.P.No.2415/2009 3 accused signed the cheque in her presence was required. If petitioner disputed that there was any such issue of cheque it was for him to challenge the evidence of PW1 regarding execution of the cheque. Expression ‘issued a cheque’ stated in the chief affidavit meant that petitioner signed and issued the cheque as claimed by respondent No.1. According to the petitioner, he gave signed blank cheque leaf at the time of entering into the hire purchase agreement on 28.6.2004 but he did not adduce evidence or bring out circumstances to show that signed blank cheque leaf was given at that time. Under Section 118(a) of the Act there is a presumption that every negotiable instrument bearing a date is made or drawn on such date. Ext.P2 bears the date 7.3.2006. In the absence of contra evidence it is to be that the cheque was drawn on that date. There is nothing on record to rebut that presumption. Apart from giving Ext.P7, reply no attempt was by the petitioner to prove that signed blank cheque was given. Courts below considered the evidence and found that there is no reason to disbelieve PW1. Thus, there is concurrent finding regarding due execution of the cheque. 4. Petitioner has a case that no amount as stated in Ext.P2 was due to respondent No.1. Learned counsel contended that no document is produced to show the actual amount due to respondent No.1. The presumption under Section 139 of the Act though rebuttable in nature is that the cheque is issued for the discharge of debt/liability. In this case the cheque is drawn for the sum of Rs.2,06,800/-. Therefore until rebutted there is a presumption that the cheque Crl.R.P.No.2415/2009 4 was drawn for discharge of liability to the tune of Rs.2,06,800/-. If petitioner has a case that no such amount was due and in that he had already discharged the liability, he had to produce or summon documents from respondent No.1 to support that contention. No attempt in that regard was made. 5. So far as the contention that the vehicle was repossessed by respondent No.1 is concerned, no evidence in that line is produced. The mere fact that based on the hire purchase agreement arbitration proceeding is initiated and is pending in another court is no ground to interfere with the conviction of petitioner. Petitioner has failed to rebut the presumption under Section 139 of the Act and as such no interference is required with the conviction of petitioner. 6. Learned magistrate sentenced petitioner to undergo simple imprisonment till rising of the court. There was a direction for payment of compensation of Rs.2,50,000/- to respondent No.1 with a default sentence of imprisonment for three months. Learned Additional Sessions Judge while disposing of the appeal set aside the substantive sentence and modified the amount of compensation payable to Rs.2,06,800/-. No default sentence was provided. 6. As it appeared to me that the learned Additional Sessions Judge has committed an illegality in not imposing sentence following confirmation of conviction and in not providing for default sentence for non-payment of compensation, I have heard learned counsel for petitioner and respondent No.1 Crl.R.P.No.2415/2009 5 in that regard. Unlike the power of the Sessions Judge, High Court has power to exercise suo motu revisional jurisdiction. Even when the records are not called for by itself when a patent illegality is brought to the notice of this Court it is certainly the responsibility of this Court to exercise revisional power and correct the illegality. A direction for payment of compensation can be issued only when there is a sentence of imprisonment (and imprisonment alone) as seen from Section 357(3) of the Code of Criminal Procedure (for short, “the Code”). Compensation is not sentence, nor part of it. It is illegal not to provide sentence when a conviction is entered. To that extent an illegality has been committed by the learned Additional Sessions Judge. It is also trite law that courts are vested with the power to impose a default sentence in case of non- payment of compensation. Section 357(4) of the Code enables the High Court in revision to direct payment of compensation. That necessary includes the power to impose default sentence also. I am aware that this revision is at the instance of the accused challenging his conviction. A similar situation arose in Radhakrishnan Nair v. Padmanabhan (2000 (2) KLT 349) where the trial court imposed sentence of fine beyond its power under Section 29(2) of the Code at a time when Section 143 of the Act was not amended. In appeal at the instance of accused learned Sessions Judge modified the sentence as simple imprisonment till rising of the court and directed payment of compensation with a default sentence. Legality of that, was challenged in this Court. This Court held that what the learned Sessions Judge ordered did not Crl.R.P.No.2415/2009 6 amount to enhancement of sentence but only a modification of the sentence which the appellate court was entitled to do even on an appeal against conviction and sentence. Therefore providing sentence of imprisonment till rising of the court and default sentence for non-payment of compensation do not amount to enhancement of sentence. At any rate, in exercise of the suo motu power under Section 401 of the Code, High Court is entitled to do so to rectify the illegality committed by learned Additional Sessions Judge. Having regard to the circumstances of the case I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the direction for payment of compensation as modified by the appellate court. Petitioner has to undergo imprisonment in case of non-payment of compensation. 7. Learned counsel for petitioner submits that petitioner is in a financially difficult situation unable to raise money immediately and requested six months’ time to deposit compensation. Request for time upto six months is opposed by counsel for respondent No.1. Having regard to the circumstances stated by learned counsel and the amount involved I am inclined to grant time to the petitioner till 31.12.2009 to deposit compensation. Resultantly, this revision is disposed of in the following lines: i. Petitioner is sentenced to undergo simple imprisonment till rising of the court. Crl.R.P.No.2415/2009 7 ii. Petitioner is granted time till 30.12.2009 to deposit compensation in the trial court as ordered by the appellate court. In case of non-payment, petitioner has to undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance with the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through its counsel acknowledging receipt of the compensation within the above said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Execution of warrant if any against the petitioner will stand in abeyance till 31.12.2009. THOMAS P.JOSEPH, Judge. cks