IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 CRL.REV.PET.NO. 1701 OF 2009() ---------------------------------------------- CRA.465/2008 OF ADDL. SESSIONS COURT (ADHOC-II), ERNAKULAM CC.429/2004 OF JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER(S): IST RESPONDENT --------------------------------------------------------- T.A. ABDUL JALEEL, THAVAMATTOM HOUSE, PINARMUNDA KARA, KIZHAKKAMBALAM. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S) – RESPONDENTS - ACCUSED: ----------------------------------------------------------- 1. BABY PAUL, KIZHAKKEKUDIYIL HOUSE, PALLIKKARA, KUMARAPURAM.P.O, KIZHAKKAMBALAM. 2. STATE OF KERALA, REPRESETED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SUNU P.JOHN FOR R1 BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. No.1701 of 2009. = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of September, 2009 O R D E R ------------- This revision arises from judgment of learned Additional Sessions Judge (Adhoc-II), Ernakulam in Crl. Appeal No.465 of 2008 which arose from the conviction and sentence imposed on respondent No.1 by learned Judicial First Class Magistrate in C.C. No.429 of 2004. Revision petitioner filed complaint against respondent No.1 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) alleging that Ext.P1, cheque dated 22.3.2004 for the sum of Rs.3,00,000/- issued by respondent No.1 was dishonoured as account was closed and that in spite of dishonour intimation and demanding payment respondent No.1 did not pay the amount. Learned magistrate tried respondent No.1 and on the evidence found that respondent No.1 committed offence punishable under Sec.138 of the Act. He was sentenced to undergo simple imprisonment for nine months and to pay Rs.2,00,000/- as compensation to the petitioner. Default sentence of simple imprisonment for three months was also provided. Petitioner did not challenge legality or extent of sentence awarded to respondent No.1 or the amount of compensation ordered CRL. R.P. No.1701 of 2009 -: 2 :- to be paid to him. Respondent No.1 challenged his conviction and sentence in Crl. Appeal No.465 of 2008. Appellate court while confirming conviction found that in the nature of offence proved against respondent No.1, sentence of simple imprisonment till rising of the court is sufficient in the ends of justice. Direction for payment of compensation issued by learned magistrate with default sentence was confirmed as there was no challenge on that. Petitioner is aggrieved by the modification of the substantive sentence ordered by learned Additional Sessions Judge. Learned counsel for petitioner contends that there is no justification for appellate court modifying substantive sentence from nine months to one till rising of the court. According to the learned counsel at any rate when substantive sentence was modified appellate court ought to have directed respondent No.1 to pay the amount covered by the cheque as compensation. Petitioner is aggrieved in that regard and hence this revision. 2. Respondent No.1 per contra, contended that main grievance of petitioner is concerning the amount of compensation awarded to him and in spite that learned magistrate directed payment of compensation of only Rs.2,00,000/-, petitioner did not challenge the CRL. R.P. No.1701 of 2009 -: 3 :- same by filing a revision before learned Sessions Judge. Therefore petitioner cannot be heard to say that compensation awarded to him is inadequate. 3. Respondent No.1 filed Crl. R.P. No.2052 of 2009 in this Court which this Court disposed of as per order dated 3.7.2009 refusing to interfere with the conviction, sentence or direction for payment of compensation and granting time to respondent No.1 to deposit compensation in the trial court as ordered by that court. It is true that Crl. R.P. No.2052 of 2009 was disposed of by this Court on 3.7.2009 without notice to the petitioner in this revision observing that disposal of that revision will not in any way be prejudicial to the petitioner. Reason for observing so was that this Court while disposing of Crl. R.P. No.2052 of 2009 did not interfere with the sentence as modified by the appellate court, direction for payment of compensation or the default sentence as confirmed by that court. This Court refused to interfere with the direction for payment of compensation ordered by the learned magistrate as confirmed by the appellate court at a time when concededly petitioner herein had not challenged the amount of compensation awarded by learned magistrate. CRL. R.P. No.1701 of 2009 -: 4 :- 4. So far as this revision is concerned I must bear in mind that main challenge is to the sentence as modified by the appellate court. Learned counsel contends that there was no sufficient reason for the appellate court to modify the sentence of imprisonment from nine months to simple imprisonment till rising of the court. So far as compensation awarded by the learned magistrate is concerned petitioner had not challenged the same. It was well within the power of the appellate court in view of Section 357(4) of the Code of Criminal Procedure (for short, “the Code”) to award appropriate amount compensation. It is settled position of law that revisional court is required to interfere with the sentence only when it is grossly inadequate or so excessive. This is a case where conviction is for offence punishable under Sec.138 of the Act. Normally offence under Sec.138 of the Act does not involve any moral turpitude. This case is not an exception to that rule. The extent of sentence to be awarded is a matter within the discretion of the court of course to be exercised judicially. Deterrent punishment by way of imprisonment for long term is not warranted for offence punishable under Sec.138 of the Act. Appellate court has modified the sentence of imprisonment of nine months to simple imprisonment till rising of the court. I do not find CRL. R.P. No.1701 of 2009 -: 5 :- sitting in revision to interfere with the discretion exercised by the appellate court. 5. What then remained for consideration is the grievance of petitioner regarding the amount of compensation. True, under Sec.357(4) of the Code revisional court is invested with the power to award compensation and that includes power to re-fix the compensation in appropriate case if it is found to be inadequate. Learned magistrate found that though amount covered by the cheque was Rs.3,00,000/-, compensation of Rs.2,00,000/- is sufficient. That also involves exercise of proper discretion by the trial court. It is pertinent to note that petitioner had no challenge to the compensation awarded by the trial court. Concededly no revision petition was filed against the amount of compensation awarded to the petitioner. In other words I am to think that petitioner was satisfied with the compensation awarded by learned magistrate. He chose to file a revision only when appellate court modified the substantive sentence of nine moths to simple imprisonment till rising of the court and retained the direction for payment of compensation. I am not inclined to think that mere fact that substantive sentence was modified by the appellate court gave room for the petitioner to CRL. R.P. No.1701 of 2009 -: 6 :- complain that compensation awarded by the learned magistrate is meagre. In that view of the mater I find no illegality, irregularity or impropriety in the learned Additional Sessions Judge confirming the direction for payment of compensation awarded by learned magistrate requiring interference at the hands of revisional court. I also take note of the fact that Crl. R.P. No.2052 of 2009 was disposed of noting that there is no illegality, irregularity or impropriety in the judgment of appellate court though that was without notice to the revision petitioner herein. For the above reasons revision petition fails and it is dismissed. THOMAS P.JOSEPH, JUDGE. vsv