IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Crl.Rev.Pet.No. 45 of 2007() ---------------------------- CRA.219/2003 of II ADDL. SESSIONS COURT, TRIVANDRUM ST.203/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... REVN. PETITIONER(S):/RESPONDENT/ COMPLAINANT: --------------------------------- B. PARAMESWARAN NAIR, PUTHUSERRY VEEDU, AYANIMOODU, VEDIVACHANCOIL, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT(S)/APPELLANT AND STATE/ACCUSD AND STATE: --------------- 1. D. RAVEENDRAN, S/O.DHAMODHARAN PILLAI, REVATHY GARBAGE CLEANING COMPANY, N.R.A.85, POONTHURA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 SRI.NIREESH MATHEW FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.45 of 2007 -------------------------------------- Dated this the 17th day of June, 2009. ORDER Since challenge in this revision is only regarding the legality and extent of sentence and compensation awarded to the petitioner it is not necessary to call for records of the case. 2. Petitioner preferred a complaint against respondent No.1 alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). His case is that respondent No.1 borrowed Rs.20,000/- from him and for discharge of that liability issued Ext.P1, cheque dated 8.2.2000 which as proved by Ext.P2, memo was dishonoured as account was closed. Petitioner issued statutory notice to respondent No.1 intimating dishonour and demanding payment of the amount. Notice was served on respondent No.1 but he did not pay the amount. Petitioner gave evidence as PW1 and proved Exts.P1 to P4. Respondent No.1 claimed that he had already repaid Rs.17,000/- out of the amount borrowed and that the cheque taken as security was misused by petitioner. He produced Exts.D1 and D2. Learned magistrate found that the defence set up by respondent No.1 is not true, convicted respondent No.1 for the offence punishable under Section 138 of the Act and sentenced him to undergo simple imprisonment for fifteen days and payment of fine of Rs.2,500/-. In case of failure to deposit fine, he was directed Crl.R.P.No.45/2007 2 to undergo simple imprisonment for seven days. Learned Additional Sessions Judge who heard the Crl.Appeal, vide judgment dated 13.10.2006 confirmed conviction of respondent No.1 but modified the substantive sentence to imprisonment till rising of court. Fine was converted as compensation of Rs.7,500/- payable to the petitioner. In default of payment of compensation, respondent No.1 was directed to undergo simple imprisonment for twentyone days. Petitioner is aggrieved to the extent the sentence was modified and has come up in revision. Learned counsel for petitioner contends that since the amount covered by cheque was Rs.20,000/- and the transaction was in the year 2000, there was no justification for the appellate court directing payment of compensation of only Rs.7,500/-. According to learned counsel, this Court while exercising power of revision is competent to award proper compensation to the aggrieved party. Reliance is placed on the decision in P.Aboobacker v. Ismail and another (2005(1) KLJ 378). According to counsel for respondent No.1, there is no reason to interfere with the discretion exercised by the appellate court. 3. Conviction of respondent No.1 is not under challenge before me. What remained for consideration is only whether sentence modified by the appellate court is legal and proper. Revisional court is entitled to consider the legality and extent of sentence imposed by courts below. Section 357(4) of the Code of Criminal Procedure( for short, “the Code”) enables the High Court while exercising power of revision to pass orders for payment of compensation. ‘Compensation’ means just equivalent. In other words compensation Crl.R.P.No.45/2007 3 contemplated under Section 357(3) of the Code must be sufficient to compensate the victim for the loss he suffered. In this case, amount covered by the cheque which was dishonoured for insufficiency of funds as concurrently found by courts below is Rs.20,000/-. Though respondent No.1 raised a contention that he had already paid Rs.17,000/- no evidence in that line was adduced and courts below were not impressed by that contention. In other words as on the date of filing of complaint as found by courts below Rs.20,000/- was due to petitioner as per the cheque in question. Appellate court observed that in the facts and circumstances of the case, substantive sentence awarded to respondent No.1 could be modified as simple imprisonment till rising of the court. So far as that part of sentence is concerned, petitioner has no serious grievance. Considering the nature of offence which is not shown to be involved any moral turpitude I did not also find reason to interfere with the discretion exercised by appellate court so far as substantive sentence is concerned. 4. Coming to the sufficiency of compensation awarded, I stated that cheque covered Rs.20,000/-. Learned Additional Sessions Judge has not stated any valid reason for confining compensation to Rs.7,500/- as against the sum of Rs.20,000/- covered by cheque and which respondent No.1 obliged to pay to petitioner within the statutory period from the date of service of notice. In these circumstances I am inclined to accept the contention of petitioner that appellate court has not exercised proper discretion in confining compensation to Rs.7,500/-. This Court while exercising power under Section 357(4) of Code is entitled to reassess the loss caused to petitioner and award proper Crl.R.P.No.45/2007 4 compensation which in the circumstances of the case is fixed as Rs.20,000/-. 5. Counsel for respondent No.1 sought one month’s time to deposit compensation in the trial court. Having regard to the amount involved and the circumstances stated by learned counsel I am inclined to allow that request. Resultantly, this revision is allowed in part and the judgment of learned II Additional Sessions Judge , Thiruvananthapuram in Crl.A.No.219 of 2003 is set aside to the extent it concerned the amount of compensation directed to be paid and the default sentence provided. While retaining substantive sentence as modified by appellate court respondent No.1 is directed to deposit in the trial court within one month from today for payment to petitioner Rs.20,000/- (Rupees Twenty thousand only) as compensation under Section 357 (3) of the Code failing which respondent No.1 shall undergo simple imprisonment for one month. Respondent No.1 shall appear in the trial court on 20.7.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks