IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 Crl.Rev.Pet.No. 1829 of 2009() ------------------------------ AGAINST JUDGEMENT IN CRA.18/2008 of ADDL.SESSIONS JUDGE (ADHOC)-I MANJERI DTD 31.3.2009 IN CC.224/2006 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI DTD 14.12.2007 .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------- ANILKUMAR,S/O.ANANDAN,AGRICULTURAL DEVELOPMENT OFFICER,AGRICULTURAL CO-OPERATIVE RURAL DEVELOPMENT BANK,NEAR POST OFFICES, PERINTHALMANNA. BY ADVS. MR.K.SHIBILI NAHA MS.A.LOWSY RESPONDENT(S)/COMPLAINANAT AND STATE: ------------------------------------------------------ 1. ABDUL REHMAN,S/O.MUHAMMED, ERATTUKUZHIYAN HOUSE,MYTHRA.PO,ARCACODE, MALAPPURAM DISTRICT. 2. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,ERNAKULAM. PUBLIC PROSECUTOR MR. RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO.1829 OF 2009 ---------------------------------------- Dated this the 12th day of June, 2009 ORDER Public Prosecutor takes notice for respondent No.2. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make which is not prejudicial to him. 2. Heard counsel for petitioner and Public Prosecutor. 3. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc -I), Manjeri in Criminal Appeal No.18 of 2008. Case arose on a private complaint preferred by respondent No.1 alleging that petitioner committed offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to him, petitioner borrowed Rs.2 ½ lakhs from him on 20.5.2005 and for the discharge of that liability issued cheque, dated 14.8.2006. That cheque was dishonoured for insufficiency of funds. Respondent No.1 issued notice to the petitioner intimating dishonour and demanding payment of the amount. Petitioner did not pay the amount in spite of service of notice on him. Respondent No.1 gave Crl.R.P.No.1829/09 2 evidence as PW1 and testified to his case. Case pleaded by petitioner is that he had no transaction with respondent No.1. He had some transaction with one Saidalavi to whom a blank cheque was given. That blank cheque is misused, according to him. Petitioner did not adduce any evidence in support of that contention. Respondent No.1 when examined as PW1 testified to his case. He claimed that petitioner borrowed the amount from him on 20.5.2005 and for the discharge of that liability issued Ext.P1, the cheque. He denied that he got the cheque from the said Saidalavi. Courts below found in favour of due execution of cheque for the discharge of legally enforceable debt/liability. That finding is under challenge in this revision. Learned counsel contended that due execution of the cheque is not proved. 4. It is not disputed and proved by respondent No.1 that Ext.P1 contained the signature of petitioner and is drawn on the account maintained by him. According to the petitioner, he had given that cheque to Saidalavi from whom respondent No.1 got it stealthily. But apart from merely suggesting so to respondent No.1, petitioner did not take any steps to prove or probabilise that contention. Even Saidalavi Crl.R.P.No.1829/09 3 to whom petitioner is said to have handed over the cheque was not cited as a witness. Nor did petitioner give a reply to respondent No.1 on being served with notice of dishonour of the cheque for Rs.2 ½ lakhs and demand to pay the said amount. There is no reason to disbelieve the evidence of respondent No.1. I do not find reason to interfere with the concurrent finding entered by the courts below regarding execution of the cheque, its dishonour for insufficiency of funds and failure of petitioner to pay the amount in spite of dishonour intimation and demand. Petitioner was not successful in rebutting the presumption under Section 139 of the Act. Hence conviction cannot be assailed. 5. Learned Chief Judicial magistrate sentenced petitioner to undergo Simple Imprisonment for five months and imposed cost of Rs.1,000/- with a default sentence for one day. In appeal learned Additional Sessions Judge while modifying the substantive sentence as Simple Imprisonment till rising of the court directed the petitioner to pay Rs.2 ½ lakhs under Section 357(3) of the Code of Criminal Procedure (for short, “the Code”) as compensation and in default of payment to undergo Simple Imprisonment for three months. Crl.R.P.No.1829/09 4 Learned counsel contends that appellate court could not have enhanced the sentence on an appeal preferred by the convicted accused. It is also contended by learned counsel that facts and circumstances did not justify awarding compensation of Rs.2 ½ lakhs. It is also argued that appellate court could not have enhanced th default sentence. 6. So far as substantive sentence is concerned, appellate court took a lenient view and modified the same to Simple Imprisonment till rising of the court. There is no challenge to the reduction of the substantive sentence. 7. Learned Chief Judicial magistrate observed that this is not a case where respondent No.1 has been put to loss by any act of the petitioner in that, respondent No.1 could recover the amount by filing a suit. As there is no loss, there is no need for awarding compensation to respondent No.1 in the opinion of learned Chief Judicial magistrate. Appellate court invoking Section 357(4) of the Code directed payment of compensation. 8. Time and again this Court has pointed out the necessity to award compensation following conviction in cases involving under Section 138 of the Act to compensate the loss Crl.R.P.No.1829/09 5 caused to the payee or holder in due course as the case may be. Those directions were issued taking into account the object of legislation as well. Appellate court has observed that the view taken by learned Chief Judicial magistrate that respondent No.1 is not put to loss on account of dishonour of the cheque is not correct. I do not find reason to interfere with that finding of the appellate court in view of the object of legislation and the decisions of this Court. 9. Then the question is whether appellate court could have directed payment of compensation. Compensation payable under Section 357(3) of the Code is not part of the sentence. Section 357(3) is provided in the Code to compensate the victims who suffered at the hands of offender who has been found guilty. Therefore a direction for payment of compensation cannot be treated on part with the sentence. Section 357(4) of the Code specifically empowers the appellate and revisional courts to award compensation. Hence notwithstanding that learned Chief Judicial magistrate had refused to award compensation, it was well within the power of the appellate court to invoke Section 357(4) and award compensation. The default sentence provided for non- Crl.R.P.No.1829/09 6 payment of compensation cannot also treated as sentence since providing such default sentence is only to enforce payment of compensation. 10. Then the question is whether amount of compensation awarded to respondent No.1 is excessive. Ext.P1, cheque is dated 14.8.2006 and is for Rs.2 ½ lakhs. Evidence of respondent No.1 which the Courts below accepted is that petitioner borrowed Rs.2 ½ lakhs from him and for the discharge of that liability issued the cheque. There is no case for petitioner that at any time after 14.8.2006 he paid any amount to respondent No.1. Appellate court disposed of the appeal only on 31.3.2009, ie. almost three years after the transaction and execution of the cheque. Hence the compensation awarded, cannot be said to be excessive. 11. Learned counsel requested that petitioner may be given four months' time to deposit compensation as directed by the appellate court. Considering the amount involved, I am inclined to allow that request. 12. Resultantly, this revision fails. It is dismissed. Petitioner is granted four months' time from today to deposit compensation in the trial court as ordered by the appellate Crl.R.P.No.1829/09 7 court. In case of default, he shall undergo imprisonment as ordered by the appellate court. It is made clear that it will be sufficient compliance with the direction for payment of compensation if petitioner paid the compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed statement in the trial court through his counsel acknowledging receipt of the compensation within the aforesaid time. Petitioner shall appear in the trial court on 14.10.2009 to receive the sentence. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.1829/09 8