IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 Crl.Rev.Pet.No. 1091 of 2001() ------------------------------ CRA.471/2001 of SESSIONS COURT, ERNAKULAM CC.468/1994 of JUDL.MAGISTRATE OF FIRST CLASS, CHERTHALA .................... REVN. PETITIONER: ---------------------------- V.S.RAJEEV, KOZHIPPALLY HOUSE, KANDANASSERY .P.O. (VIA) ARIKKANNIYOOR, THRISSUR. BY ADV. SRI.T.RAVIKUMAR SRI.S.RAJEEV RESPONDENTS: ---------------------- 1. K.P. RAVEENDRANATHAN, RAGHAVA BHAVANAM, KANICHIKULANGARA, ALAPPUZHA (DIED). 1. AKSHAJ.K.R. S/O (LATE)K.P.RAVEENDRANATH, RAGHAVA BHAVANAM, KANICHUKULANGARA, ALAPPUZHA. LEGAL HEIR OF THE DECEASED FIRST RESPONDENT – AKSHAJ.K.R – IS SUBSTITUTED AND IMPLEADED IN THE PLACE OF FIRST RESPONDENT AS PER ORDER DATED 17/5/04 IN CRL.M.A.4260/04. 2. STATE OF KERLA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/02/2008, ALONG WITH CRRP NO. 10 OF 2002 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos. 1091/2001 & 10/2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of February, 2008. ORDER Crl.R.P.1091/2001 is at the instance of the accused who had been concurrently found guilty under Section 138 of the Negotiable Instruments Act by the trial court as well as the appellate court. The trial court convicted and sentenced the accused to undergo simple imprisonment for one year and to pay a fine of Rs.7.60 lakhs with default sentence. But in appeal the sentence was modified and petitioner was directed to suffer imprisonment for one month and to pay Rs.9.15 lakhs as compensation under Section 357(3) of the Cr.P.C. with default sentence of simple imprisonment for 3 months. 2. At the very outset it has to be noticed that the revision petitioner is reportedly dead. Learned counsel submits that the petitioner passed away some time in January 2007, more than a year ago. No petition has been filed so far by any of the legal representatives seeking permission or leave of this Court to prosecute the case. However I have perused the entire materials available on record carefully with more diligence ,since the accused is no more. 3. Crl.RP.10/2002 has been preferred by the complainant challenging inadequacy of the substantive sentence as well as the amount of compensation awarded by the courts below under Section 357 (3) of the Code of Criminal Procedure. 4. The case of the complainant, to put briefly, was that the accused had borrowed a sum of Rs.7,50,000/- from him on May 16, CrlRP1091/01 &10/02. 2 1991. According to the complainant, the accused was the cousin of his wife and she had requested for advancing a loan to him. Accordingly the accused had gone to the residence of the complainant by which time the amount was kept ready . The complainant had paid the money to the accused who in turn issued Ext.P1, P5 and P6 cheques dated May 16, 1991--for Rs.2 lakhs, 3 lakhs and 2.50 lakhs respectively. However the accused had requested the complainant to present the cheque for Rs.2 lakhs on July 16, 1991 and the other two cheques on August 1, 1991. The accused had assured the complainant that the cheques would be honoured on presentation. 5. But when the first cheque was presented for encashment on July 23, 1991 it was dishonoured due to insufficiency of funds in the account of the accused. The complainant had promptly issued Ext.P3 statutory notice demanding payment. The other two cheques also met with the same fate when they were presented in the Bank. Ext.P9 statutory notice was issued by the complainant in respect of dishonour of the above two cheques. The accused did not discharge the liability and hence the complainant had initiated the prosecution. 6. The complainant got himself examined as Pw.1 and his two witnesses were examined as Pws.2 and 3. Exts.P1 to P26 were also marked on his side. On the side of the defence, the acccused got himself examined as Dw.1 and his witness was examined as Dw.2. Exts.D1 to D9 were marked on his side. 7. The defence set up by the accused was that he had not CrlRP1091/01 &10/02. 3 borrowed the sum of Rs.7,50,000/- from the complainant as alleged. He denied issuance of Exts.P1, P5 and P6 cheques towards discharge of any liability. According to the accused he had handed over 10 blank signed cheque leaves to the complainant for the purpose of complainant's “financial adjustments”. 8. The trial court after a careful and elaborate consideration of the oral and documentary evidence on record found that the accused had issued Exts.P1, P5 and P6 cheques in discharge of a legally recoverable debt which he owed towards the complainant. It was further held by the learned Magistrate that the accused had failed to substantiate his contention that the above cheques were the 3 among the 10 blank signed cheque leaves which were allegedly handed over by the accused to the complainant for the so called “financial adjustments”. The trial court had further found that the evidence of DW.2 did not in anyway advance the case of the accused. In short, the learned Magistrate found that the prosecution had succeeded in proving the charge against the accused under Section 138 of the Act. 9. The learned Sessions Judge in appeal had re-evaluated the entire oral and documentary evidence at great length. While dealing with the contention raised by the accused that there was no evidence to show that the complainant had advanced such a huge sum to the accused, the learned Sessions Judge held that the above contention was untenable. It had come out in evidence that the complainant was also a Contractor. It was the admitted position that he was an assessee to CrlRP1091/01 &10/02. 4 income tax. Ext.P25 also revealed that he had substantial income from his business. Accused had also admitted that the complainant was maintaining accounts in various banks at several places. In this context it may also be noticed that the accused had not discharged the burden cast upon him under Section 139 of the Act. 10. Having carefully perused the entire materials available on record, I do not find any reason to interfere with the concurrent findings entered by the courts below. The courts below, in my view, were justified in holding the accused guilty under Section 138 of the Act. No interference is warranted with the concurrent order of conviction and sentence. 11. However it is contended by learned counsel for the complainant who has preferred Crl.RP.10/2002 that the lower appellate court was not justified in limiting the quantum of compensation to Rs.9 lakhs. Learned counsel contends that compensation ought to have been commensurate with or adequate enough to set off the loss sustained by the complainant. He had advanced the money to the accused in the year 1991. The appeal was disposed of by the learned Sessions Judge in August 2001. By that time almost 10 years had elapsed. Therefore the learned Sessions Judge ought to have awarded reasonable compensation, it is contended. I am afraid the above contention is totally misconceived and untenable. It may be true that the accused had borrowed a sum of Rs.7,50,000/- from the complainant in discharge of which he had issued the three cheques. CrlRP1091/01 &10/02. 5 The litigation has been dragged on for nearly 14 years, may be for reasons beyond the control of the complainant as well as the accused. It cannot be said that the complainant was not without any remedy if he had been more keen to get interest on the money he had advanced to the accused. The scope and ambit of Section 357 of the Code, in my view, envisage totally different situations. 12. In the peculiar facts and circumstances I am satisfied that the learned Sessions Judge was justified in fixing the quantum of compensation as Rs.9,15,000/-. Both the revision petitions are dismissed. A.K. Basheer Judge. an. CrlRP1091/01 &10/02. 6 A.K. Basheer, J. Crl.RP.1091/2001 & 10/2002 ------------------------------------ O R D E R 11/02/2008