IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 Crl.Rev.Pet.No. 2524 of 2009() ------------------------------ CRA.86/2005 of ADDL. SESSIONS COURT, FAST TRACK COURT- III, PALAKKAD CC.819/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------- ABDUL RAHIMAN ALI S/O.ALI, CHUNGATHUPARAMBIL VEEDU MANIKKAPADAM, VADAKKENCHERRY, ALATHUR, PALAKKAD DISTRICT. BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.S.AMINA RESPONDENT(S)/RESPONDENTS/COMPLAINANAT AND STATE: --------------- 1. AMINA, W/O.ABDUL RAHIMAN RAMLATHU MANZIL, MANIKKAPADAM, VADAKKANCHERRY ALATHUR. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 SRI.JOHNSON P.JOHN FOR R1 SRI.BABY MATHEW FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2524 of 2009 -------------------------------------- Dated this the 10th day of August, 2009. ORDER Heard both sides and Public Prosecutor. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track Court No.-III, Palakkad in Cr.Appeal No.86 of 2005 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to respondent No.1, petitioner issued Ext.P1, cheque dated 1.10.1999 for Rs.1,50,000/- for discharge of a liability. That cheque was dishonoured for insufficiency of funds as proved by Exts.P2 and P3. Service of statutory notice on petitioner is proved by Exts.P4 and P5. Ext.P6 is the reply dated 10.11.1999 sent by petitioner to the notice served on him. Respondent No.1 gave evidence as PW1 and asserted that petitioner issued the cheque for discharge of a debt/liability. According to the petitioner and as stated in Ext.P6, reply, in the year 1999 he had agreed to take the son of respondent No.1 to gulf and received Rs.38,000/- from the husband of respondent No.1 for the said purpose. On that occasion two signed blank cheques were given. Petitioner claimed that one of those signed blank cheques has been misused by respondent No.1. He gave evidence as DW1 and proved Exts.D1 and D2 series. Ext.D1 is said to be an undertaking made by Hameed, son of respondent No.1. Crl.R.P.No.2524/2009 2 Ext.D2 series are certified photocopies of vakalath and other proceeding in C.C.Nos.726 of 2004 and 433 of 2004 allegedly involving Hameed, son of respondent No.1. Those documents were produced to show that signature in Ext.D1 is that of the said Hameed. Courts below did not accept the contention of petitioner. That finding is under challenge in this revision. It is contended that right from beginning petitioner has a specific defence as seen from Ext.P6 concerning which evidence is also let in. Therefore courts below are not correct in holding in favour of due execution of the cheque. In response it is contended by learned counsel for respondent No.1 that courts below considered the evidence and found in favour of due execution of the cheque and that finding does not suffer from any illegality, irregularity or impropriety. 3. Reappraisal of the evidence is not the function of the revisional court. The power of the revisional court is supervisory in character, to ascertain whether the finding suffers from any illegality, irregularity or impropriety. Bearing that function of the revisional court in mind, I shall consider whether there is anything illegal, irregular or improper in the finding entered by the courts below. 4. It is not disputed that Ext.P1, cheque contained the signature of petitioner and is drawn on the account maintained by him. Though petitioner stated in Ext.P6, reply, in his statement under Section 313 of the Code of Criminal Procedure (for short, “the Code”) and evidence as DW1 that it was in connection with his taking the son of respondent No.1 to gulf that he received Rs.38,000/- and for the said purpose gave two signed blank cheques including Crl.R.P.No.2524/2009 3 Ext.P1 to the husband of respondent No.1, that suggestion has been denied by respondent No.1. Petitioner did not examine the husband of respondent No.1 to prove his case. Reliance is placed on Exts.D1 and D2 series. So far as Ext.D1 is concerned, no effort was made by the petitioner to examine Hameed who is said to have made that undertaking. No effort was made to send the disputed signature in Ext.D1 with the admitted signature in Ext.D2 series to the handwriting expert for examination and report. A further fact to be noted is that even if Ext.D1 is accepted that has no reference to the cheque in question. It does not refer to the issuance of signed blank cheques as claimed by the petitioner. It is in these circumstances that courts below found that the version of petitioner cannot be accepted. That finding is based on an appreciation of evidence let in by both sides. So far as it is not shown that finding suffers from any illegality, irregularity or impropriety interference in revision is not called for. 5. So far as capacity of respondent No.1 to advance Rs.1,50,000/- is concerned, she has given evidence that her husband was employed in gulf at the relevant time and she was managing their properties. On the evidence on record there is little reason to interfere with the finding of the courts below regarding execution of the cheque. 6. Learned magistrate while sentencing petitioner to undergo simple imprisonment for two months directed payment of Rs.1,50,000/- as compensation to respondent No.1 and provided default sentence of imprisonment for one month. In appeal while the substantive sentence was Crl.R.P.No.2524/2009 4 modified as simple imprisonment till rising of the court compensation payable was fixed as Rupees two lakhs and default sentence of imprisonment for three months was provided. Learned counsel contends that appellate court was not justified in enhancing compensation without even a prayer from respondent No.1 to that effect. It is also submitted by learned counsel that it was without notice to the petitioner that compensation was enhanced to Rupees two lakhs. Learned counsel pointed out from the judgment of the learned magistrate that the request made by counsel for respondent No.1 was only to award the cheque amount (Rs.1,50,000/-) by way of compensation. It is contended by learned counsel for respondent No.1 that it was well within the power of the appellate court to award just compensation taking into account all relevant circumstances notwithstanding the submission of learned counsel for petitioner in the trial court to award the cheque amount. It is seen from the judgment of the appellate court that petitioner or counsel were not available for hearing. To dispose of an appeal on merit what is required is only that appellate court should have gone through the records and considered the contentions. That, going by the judgment of the appellate court has been done. Therefore it is idle to contend that petitioner or counsel were not available at the time of hearing. 7. I am also not inclined to accept the contention that appellate court could not have enhanced the compensation for, Section 357(4) of the Code permits appellate or revisional court to award compensation. Compensation means 'just equivalent'. What is claimed by the party concerned is an Crl.R.P.No.2524/2009 5 estimation of the compensation to which according to him, he is entitled. Ultimately it is for the court concerned to decide what exactly is the 'just compensation'. That ofcourse depends on the extent of loss suffered by the victim which would differ from case to case. In so far as Section 357(4) of the Code permits the appellate or revisional court to award compensation, it includes power to refix compensation wherever it is found that the amount did not represent the actual loss suffered by the victim. 8. It is a question for consideration in this case whether appellate court was correct in enhancing compensation. The cheque amount is Rs.1,50,000/- and as pointed out by learned counsel for petitioner the request for compensation in the trial court was only to the amount covered by the cheque. Appellate court enhanced the compensation from Rs.1,50,000/- to Rupees two lakhs. At the same time I must bear in mind that Ext.P1, cheque is dated 1.10.1999. Respondent No.1 has suffered loss from that day onwards. Considering all relevant facts and circumstances of the case and on hearing both sides I am persuaded to modify the compensation to Rs.1,65,000/-. Judgment of the appellate court to that extent has to be modified and I do so. 9. Learned counsel for petitioner submitted that petitioner may be granted six months’ time to deposit compensation in the trial court. It is stated that petitioner has crossed the age of 60 and finds it difficult to raise the amount immediately. Having regard to the difficulties expressed by the petitioner I am inclined to grant time till 29.1.2010 to deposit compensation. Crl.R.P.No.2524/2009 6 Resultantly this revision petition - is allowed in part to the following extent: i. Substantive sentence as modified by the appellate court is retained. ii. Compensation payable by the petitioner to respondent No.1 is modified as Rs.1,65,000/- (Rupees one lakh and sixtyfive thousand only). iii. Petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.1,65,000/- (Rupees one lakh and sixtyfive thousand only) as compensation under Section 357(3) of the Code on or before 29.1.2010 failing which petitioner shall undergo simple imprisonment for three months. iv. It is made clear that it will be sufficient compliance of 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 its counsel acknowledging receipt of compensation within the above stated period. Petitioner shall appear in the trial court on 31.1.2010 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks