IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.Rev.Pet.No. 445 of 2001(C) ------------------------------ CRA NO.55/2000 OF ADDITIONAL SESSIONS JUDGE, NORTH PARAVUR. CC NO.92/1997 OF JUDICIAL FIRST CLASS MAGISTRATE II, ALUVA. REVISION PETITIONER: APPPELLANT CRA/ACCUSED IN CC.92/97 ---------------------------------------------------------------------- P.M.ABDUL LATHIF, 1/430, P.D.KALA NIVAS, BEHIND COCHIN RESTAURANT, N.H.47, KOONAMATHAI, KOCHI. BY ADV. SRI.SURESH JOSE RESPONDENTS: RESPONDENTS IN CRA&COMPLAINANT IN C.C.&STATE ------------------------------------------------------------------ 1. P.D.FRANCIS, PATHUR HOUSE, POTTAKUZHI ROAD, KALOOR NORTH, ERNAKULAM, COCHIN 17. 2. STATE OF KERALA, REPRESENTED BY GOVERNMENT PLEADER, HIGHH COURT OF KERALA, ERNAKULAM. ADV. SRI.S.K.BRAHMANANDAN FOR R1 ADV.G.S.PRABHU & ADV. PREMACHANDRAN FOR R1 BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.445 of 2001 -------------------------------------- Dated this the 23rd day of September, 2008. ORDER The revision petitioner was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the Act’). The learned Magistrate found that the revision petitioner committed offence punishable under Section 138 of the Act and sentenced him to undergo simple imprisonment for six months. He was also directed to pay Rs.97,000/- as compensation to the first respondent and in default, to undergo simple imprisonment for three months. The revision petitioner preferred appeal to the Additional Sessions Court, North Paravur. The learned Additional Sessions Judge confirmed the conviction and the substantive sentence but set aside the default sentence provided by the learned Magistrate in case of the revision petitioner did not deposit the compensation as ordered. The revision petitioner is aggrieved and hence, this revision. 2. The revision petitioner and counsel remained absent. There was no representation. I heard the counsel for the first respondent and the Public Prosecutor. Perused the records. 3. Ext.P1 is the cheque dated 24.11.1996 said to be issued by the revision petitioner in favour of the first respondent. That, the first respondent presented the cheque for collection and it was dishonoured for insufficiency of Crl.R.P.No.445/2001 2 funds is not under challenge and proved by Exts.P2 and P5. The dishonour of the cheque was intimated to the revision petitioner and he was called upon to make payment of the amount due under the cheque as seen from Exts.P3 and P4. 4. So far as the due execution of the cheque is concerned, the first respondent has given evidence as PW1. When questioned under Section 313 of the Code of Criminal Procedure, the revision petitioner claimed that there was an agreement for sale of a flat between himself and DW1, the wife of the first respondent and in that transaction, signed blank cheques were taken from him. DW1 denied that suggestion. The contention is that due execution of the cheque is not proved. But, nothing was brought out to disbelieve the evidence of first respondent as PW1. The learned Additional Sessions Judge while disposing of the Criminal Appeal has observed that the revision petitioner had no consistent case regarding the execution of the cheque. On a consideration of the evidence of the first respondent and DW1, I did not find any reason to interfere with the concurrent finding of fact entered by the courts below. Conviction therefore, is legal and proper and requires no interference. 5. In this Revision Petition, there is also a challenge to the sentence imposed by the learned Magistrate. Considering the nature of the offence simple imprisonment till the rising of the court is sufficient to meet the ends of justice. The learned Magistrate while directing deposit of compensation of Rs.97,000/- provided a default sentence in case of non-payment of the amount of compensation. The learned Sessions Judge deleted the default sentence. Crl.R.P.No.445/2001 3 The power of the criminal court to impose default sentence for non-payment of compensation was recognized by the Hon’ble Supreme Court in Hari Krishnan and State of Haryana v. Sukhbir Singh and others (AIR 1988 SC 2127) and, in Suganthi Sureshkumar v. Jagdeeshan (2002 (1) KLT 581) it was directed that until a larger bench of the Supreme Court overruled the decision in Hari Krishnan and State of Haryana v. Sukhbir Singh and others referred supra, the direction in that decision will remain in force. Though later in Ettappadan Ahammedkutty v. E.P.Abdullah Koya (2008 (1) KLT 851) another bench of the Hon’ble Supreme Court (of equal strength as in Hari Krishnan’s case) ordered that the criminal court cannot impose default sentence for non-payment of compensation, a learned Single Judge of this Court in Ganga v. Lakshmi Ammal (2008 (2) KLT 306) has stated that until a larger bench overrules the decision in Hari Krishnan’s case, the subordinate criminal courts have to follow that decision. There is no reason to take a different view in the light of the direction in Suganthi Sureshkumar v. Jagdeeshan. Therefore it is permissible to impose default sentence for non-payment of compensation. There is no reason why in the case on hand and particularly since I have modified the substantive sentence to one of the imprisonment till the rising of the court, default sentence shall not be imposed. The learned Additional Sessions Judge also did not state any reason for deleting the default sentence. Therefore, the revision petitioner, in case of non-payment of compensation has to undergo simple imprisonment for two months. 6. The Revision Petition is therefore, allowed in part in the following Crl.R.P.No.445/2001 4 lines:- (1) The substantive sentence awarded to the revision petitioner is modified as simple imprisonment till the rising of the court. (2) The direction for payment of compensation is confirmed. (3) In case of the revision petitioner not depositing the compensation in the trial court within three months from this day, he shall undergo simple imprisonment for two months. (4) The amount if any, deposited by the revision petitioner in the trial court as per the order of this Court will be adjusted in the amount of compensation. (5) The revision petitioner shall surrender in the trial court on 26.12.2008 to receive the sentence. Bail bond is cancelled. Crl.M.P.No.2095 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.445/2001 5 Thomas P.Joseph, J. Crl.R.P.No.445 of 2001 ORDER 23rd September, 2008