IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 Crl.Rev.Pet.No. 2511 of 2009() ------------------------------ CRA.683/2004 of ADDL.SESSIONS COURT (FAST TRACK COURT NO.III), TRIVANDRUM CC.906/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- SAFARULLAKHAN, S/O.MASTHAN KUNJU, SAFARULLAL BUILDING, PUTHUKURICHI, KADINAMKULAM, THIRUVANANTHAPURAM. BY ADV. SRI.B.SATHIQ RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------- 1. MICHEL V.PERERA, S/O.VINCENT, VINSON COTTAGE, MUNDANCHIRA, KADINAMKULAM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2511 of 2009 -------------------------------------- Dated this the 5th day of August, 2009. ORDER Notice to respondent No.1 is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. Petitioner is aggrieved by the concurrent finding entered by the courts below as to the due execution of a cheque for the discharge of a legally enforceable debt/liability. Petitioner faced trial in the court of learned Judicial Magistrate of First Class-I, Attingal in C.C.No.906 of 2002 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) on a private complaint preferred by respondent No.1. Case is that petitioner borrowed Rs.50,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 30.3.2001. That cheque was dishonoured as account was closed as seen from Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and stated to his case. According to the petitioner, 14 signed blank cheques were given to one P.R.Raju and one of those cheques has been misused in collusion with the said Raju. Petitioner gave evidence as DW1 and proved Exts.D1 and D2. As per the version of petitioner and Exts.D1 and D2 he preferred a complaint against the said P.R.Raju which was forwarded to the Crl.R.P.No.2511/2009 2 police for investigation and accordingly police has registered a case. It is contended that due execution of the cheque is not proved. 3. So far as due execution of the cheque is concerned, it is not disputed that Ext.P1 is signed by the petitioner and is drawn on his account. Except the fact that petitioner had preferred a complaint against the said Raju for allegedly misusing the signed blank cheque there is nothing on record to show that respondent No.1 got the cheque in the circumstance pleaded by petitioner. I do not forget that petitioner has given evidence as DW1. The question is whether the evidence of DW1 is believable. It is a fact that petitioner has not replied to the statutory notice. Courts below found in favour of due execution of the cheque. That finding is not suffer from any illegality, irregularity or impropriety calling for interference in revision. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed payment of compensation of Rs.60,000/-. A default sentence of imprisonment for six months was also provided. Appellate court modified the substantive sentence as simple imprisonment till rising of the court. The direction for payment of compensation was set aside and instead, petitioner was sentenced to pay fine of Rs.50,000/- and in default of payment to undergo simple imprisonment for three months. 5. It is seen that the cheque which is dishonoured is dated 30.3.2001. Therefore, commission of the offence was before Section 143 was introduced by amended with effect from 6.2.2003. Section 143 of the Act empowers the magistrates to impose fine double the amount covered by the cheque Crl.R.P.No.2511/2009 3 notwithstanding Section 29(2) of the Code of Criminal Procedure (for short, “the Code”). In other words, as on the date of commission of the offence in this case, a magistrate of first class could not have imposed fine exceeding Rs.5,000/- for the offence punishable under Section 138 of the Act. If that be so, appellate court could not have imposed fine of Rs.50,000/- exceeding the power which the trial court had under Section 29(2) of the Code. Therefore it was illegal for the appellate court to impose fine exceeding Rs.5,000/-. As per the provisions of Section 357(4) of the Code revisional court is competent to award compensation and therefore the illegality committed can be corrected by directing payment of compensation. In the facts and circumstances of the case and considering the amount of fine imposed by the learned Additional Sessions Judge, fine is converted as compensation payable by the petitioner. It is made clear that I am not going into the sufficiency or otherwise of the compensation. 6. Learned counsel requested that petitioner may be granted five months' time to deposit compensation in the trial court. Counsel states that petitioner is not in a position to raise the amount immediately due to financial difficulties. Considering the circumstances stated by the learned counsel I am inclined to grant time to the petitioner till 16.1.2010 from this day to deposit the compensation in the trial court. In case of non-payment, petitioner has to undergo simple imprisonment for three months. Resultantly, this revision is allowed in part to the following extent: i. While retaining the substantive sentence imposed by the appellate court, sentence of fine is set aside. Instead, petitioner is directed to Crl.R.P.No.2511/2009 4 deposit in the trial court Rs.50,000/- (Rupees fifty thousand only) for payment to respondent No.1 by way of compensation under Section 357(3) of the Code on or before 16.1.2010 failing which, he shall undergo simple imprisonment for three months. ii. It is made clear that it will be sufficient compliance with the direction for deposit of compensation if petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the above said time. iii. Petitioner shall appear in the trial court on 18.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner shall stand in abeyance. THOMAS P.JOSEPH, Judge. cks