IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 Crl.Rev.Pet.No. 2359 of 2009(K) ------------------------------- CRA.41/2003 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CC.487/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- K.BABU, GOKULAM HOUSE, KANNIMELCHERY, KILIKOLLOOR, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.K.P.SUJESH KUMAR SMT.SANDHYA RADHAKRISHNAN RESPONDENTS/ RESPONDENTS/STATE & COMPLAINANT: ---------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. LATHA KRISHNAN, WIFE OF KRISHNANKUTTY PILLAI, OTTAPLAKKAL VEEDU, VALLIKKEZHU, KAVANADU, KOLLAM. PUBLIC PROSECUTOR : SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2359 of 2009 --------------------------------------- Dated this 24th day of July 2009 ORDER Notice to respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner and public prosecutor who took notice for respondent No.1. 2. Conviction of petitioner for offence punishable under section 138 of the Negotiable Instruments Act having been confirmed by the learned Additional Sessions Judge, Adhoc-II, Kollam in criminal appeal No. 41 of 2003 and that conviction having not been challenged by the petitioner, what arises for a decision in this revision is to the illegality and extent of sentence imposed on him. According to respondent No.2, petitioner issued Ext.P1, cheque dated 30-12-1999 for repayment of the sum of Rs.500000/-. Learned magistrate found in favour of due execution of the cheque for discharge of legally enforceable debt/liability, convicted petitioner and sentenced him to undergo simple imprisonment for one year and payment of fine of Rs.5000/-. There was also default sentence of imprisonment for two months. Petitioner challenged his conviction and sentence in criminal appeal No.41 of 2003. Learned Additional Sessions Judge confirmed conviction but modified the sentence as fine of Rs.5000/- and provided default sentence of simple imprisonment for sixty days'. Respondent Crl.R.P.No.2359 of 2009 2 No.2, aggrieved by the illegality and extent of sentence took up the matter in revision in this court (Crl.R.P.No.3760 of 2007). This court set aside the sentence and remitted the case to the appellate court to award proper sentence. Learned Additional Sessions Judge after hearing both sides has now imposed fine of Rs.245000/- and default sentence of imprisonment for six months. That sentence is under challenge in this revision. 3. Section 143 of the Act was amended with effect from 06-02-2003. It is by virtue of that amendment that a Magistrate of the First Class could impose a sentence of fine exceeding Rs.5000/-. The offence in this case was committed in the year 1997 at a time when the Magistrate of First Class could impose only a fine not exceeding Rs.5000/-. Therefore, appellate court could not have imposed sentence exceeding Rs.5000/-. Illegality has been committed by the appellate court in awarding sentence of fine exceeding Rs.5000/-. 4. It is requested by learned counsel i fine is converted as compensation petitioner may be permitted to pay the amount directly to respondent No.2. Learned counsel requested that petitioner may be granted six months' time to make such payment since the petitioner is facing financial difficulties. 5. Under section 386(b)(iii) of the Code of Criminal Procedure (for short, “the Code”) in an appeal from conviction appellate court can Crl.R.P.No.2359 of 2009 3 alter the nature or the extent, or the nature and extent, of the sentence but not so as to extent the same but not was able to enhance the same. Therefore, appellate court can even in an appeal against conviction alter the nature and extent of the sentence. The only limitation being there cannot be an enhancement of the sentence. Under section 401 of the Code this court while exercising power of revision can exercise such powers as could be exercised by court of appeal. Therefore the revisional court can also could alter the nature and/or extent of the sentence provided there is no enhancement. 6. Under section 357(3) of the Code compensation can be awarded only when there is sentence of imprisonment and, imprisonment alone. Hence, to convert the sentence of fine as one of compensation, sentence of imprisonment atleast till rising of the court has to be awarded. And the question is whether awarding sentence of imprisonment till rising of the court would amount to enhancement of sentence. A similar situation arose in Radhakrishnan Nair V. Padmanabhan (2000 (2) KLT 349). There trial court had imposed a sentence of fine exceeding Rs.5000/- at the time when it could not do so. Appellate court while considering the appeal against conviction and sentence converted the sentence of fine as one of compensation and directed the accused to undergo simple imprisonment till rising of the court. Sentence imposed by the appellate court was challenged in Crl.R.P.No.2359 of 2009 4 this court. This court held that what was awarded by the appellate court is only an alteration of the sentence and did not amount to enhancement. Applying that principle if petitioner is awarded simple imprisonment till rising of the court while converting the fine as compensation, that, in my view would not amount to enhancement of sentence. Moreover, this court can also exercise revisional power suo moto to correct the illegality committed by the appellate court. I have heard counsel for petitioner on the illegality committed by the appellate court in the matter of sentence. Hence, the sentence of fine imposed by the appellate court is set aside and instead, petitioner is directed to pay compensation of Rs.245000/- to respondent No. 2. At the same time petitioner is sentenced to undergo simple imprisonment till rising of the court. Considering the circumstances stated by learned counsel concerning the financial difficulty of petitioner, he is granted time till 31-12-2009 to deposit compensation. In case of failure petitioner has to undergo simple imprisonment for sixty days. Resultantly this revision is allowed in part to the following extent. Sentence of fine imposed by learned Additional Sessions Judge (Fast Track_2), Kollam is set aside. Instead, 1. Petitioner is sentenced to undergo simple imprisonment till rising of the court. 2. Petitioner is directed to deposit in the trial court for payment to Crl.R.P.No.2359 of 2009 5 respondent No.1 Rs.245000/- (Rupees Two Lakh Forty Five Thousand Only) as compensation under section 357(3) of the Code on or before 30-12-2009 failing which petitioner shall undergo simple imprisonment for sixty days. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to respondent No.2 through his counsel in the trial court and respondent No.2 filed a statement in the trial court through her counsel acknowledging receipt of compensation within the period aforesaid. 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 Sbna/