IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 CRL.REV.PET.NO. 2638 OF 2009() --------------------------------------------- CRA.65/2008 OF ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM ST.829/2005 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER(S): /APPELLANT/ACCUSED ---------------------------------------------------------------- NIRMALA DANIEL, EXAMINATION F.C.ADMINISTRATIVE OFFICE, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., RESIDING AT TYPE F QUARTERS NO.17, UNIVERSITY CAMPUS-KOCHI-22. BY ADV. SRI.SOORAJ T.ELENJICKAL RESPONDENT(S): COMPLAINANT AND STATE -------------------------------------------------------------------- 1. SREEDEVI VENUGOPAL, SREE VILLA, NEAR ST.JOHN'S CHURCH, COCHIN UNIVERSITY P.O., SOUTH KALAMASSERY- COCHIN-22. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2638 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 14th day of August, 2009 O R D E R -------------- 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 her. 2. This revision is in challenge of judgment of Learned Additional Sessions Judge (Adhoc-I), Ernakulam in Crl. Appeal No.65 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. According to respondent No.1, petitioner borrowed Rs.85,000/- from her and for repayment of that amount issued Ext.P1, cheque. Its dishonour for insufficiency of funds is proved by Ext.P2. Service of notice on petitioner is proved by Exts.P3 and P4. Petitioner sent Ext.P5, reply. Respondent gave evidence as P.W.1 and testified to her case. Petitioner did not cross-examine respondent No.1 when the latter was in the box. When questioned under Section 313 of the Code of Criminal Procedure (fort short, “the Code”) petitioner had no specific defence regarding the alleged execution of the cheque. She merely denied the evidence against her. Courts below found in favour CRL. R.P. No.2638 of 2009 -: 2 :- of due execution of the cheque and convicted her. It is contended by learned counsel that finding of the courts below is not correct. It is also contended that there is no proper questioning of petitioner under Sec.313 of the Code. 3. Evidence of respondent No.1 as P.W1 regarding the transaction and execution of the cheque is not challenged by cross- examination. It is seen that though petitioner had preferred a petition under Sec.311 of the Code for recalling respondent No.1 and that petition was allowed, petitioner did not avail that opportunity. Learned counsel for petitioner says that the fact that P.W.1 was not cross-examined did not amount to admission on the part of petitioner. May be cross-examination is not the only mode of discrediting a witness. But in considering whether evidence of P.W.1 has to be accepted, fact that her evidence was not challenged in cross- examination in spite of sufficient opportunity has to be borne in mind. I find no reason to disbelieve the evidence of P.W.1. Though learned magistrate observed in paragraph 10 of the judgment that there was no reply from the petitioner, Ext.P5 marked in the case as seen in the appendix is the reply. It is seen that in the judgments of the courts below there is no reference to the relevant dates such as date of cheque, its dishonour, date of notice and the date on which CRL. R.P. No.2638 of 2009 -: 3 :- that notice was served on petitioner. It would have been appropriate if the courts below referred to the relevant dates in the judgments. 4. So far as the contention based on questioning under Sec.313 of the Code is concerned it is seen that all the relevant materials brought on record on the side of respondent No.1 are put to petitioner. I am not inclined to accept the contention that questions put are composite in nature so that petitioner would not have understood the implications and given proper answer. I find no legal infirmity in the judgments of the courts below requiring interference in the revision. Courts below rightly found that petitioner executed the cheque for discharge of liability to the tune of Rs.85,000/-. 5. Learned magistrate sentenced petitioner to undergo simple imprisonment for eight months. Petitioner was directed to pay compensation of Rs.85,000/- with a default sentence of imprisonment for three months. Learned Additional Sessions Judge converted the sentence as fine of Rs.85,000/-. Since it is seen from the judgment of trial court that offence was committed on 20.12.2004, it was well within the power of learned magistrate and appellate court to impose fine exceeding Rs.5,000/-. Learned counsel requested that fine may be converted as compensation payable to respondent No.1 directly. But compensation is not sentence. It is only an award made in favour CRL. R.P. No.2638 of 2009 -: 4 :- of the victim to compensate the loss caused to him by the act of offender. It is also settled position of law and Sec.357(3) of the Code says that only when there is a sentence of imprisonment (alone) there can be a direction for payment of compensation. Therefore to convert the sentence of fine into compensation there must be a sentence of imprisonment on petitioner. 6. Then the question is whether it is open to the revisional court to impose a sentence of imprisonment to facilitate awarding of compensation. Under Sec.386(1)(b)(ii) of the Code in an appeal preferred by the accused against conviction and sentence it is open to the appellate court to alter the nature or the extent or nature and extent of the sentence but not so as to enhance it. As per Sec.401 of the Code this Court in revision can exercise such powers which the appellate court could exercise. Therefore this Court in revision can invoke the power of the appellate court as above stated. Then the question is whether imposition of sentence till rising of the court would amount to enhancement of sentence. A similar situation arose in Radhakrishnan Niar v. Padmanabhan (2000 (2) KLT 349). There, learned magistrate as against the provisions of Sec.29(2) of the Code imposed a sentence of fine exceeding Rs.5,000/-. Conviction and sentence were challenged by the accused in appeal. Appellate CRL. R.P. No.2638 of 2009 -: 5 :- court altered the nature and extent of sentence as simple imprisonment till rising of the court and directed payment of compensation. That was challenged in this Court on the premise that it amounted to enhancement of sentence which the appellate court was not permitted to do. This Court held that it did not amount to any enhancement of sentence but is only alteration of nature of sentence. In the circumstances revisional court is justified in converting the fine into compensation and at the same time directing imprisonment of petitioner till rising of the court. 7. It is submitted by learned counsel that son of petitioner is seriously ill and that petitioner has to incur expenses for his treatment. Learned counsel states that petitioner is not able to raise the entire amount immediately. Counsel requested six months' time to pay compensation. Considering circumstances stated by learned counsel and the amount involved, petitioner is granted time till 29.1.2010 to deposit/pay compensation. Resultantly, this revision petition is allowed in part to the following extent. (i) Sentence of fine imposed by the appellate court is set aside. (ii) Petitioner is sentenced to undergo simple imprisonment till rising of the court. CRL. R.P. No.2638 of 2009 -: 6 :- (iii) Petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.85,000/- (Rupees Eight five thousand only) as compensation on or before 29.1.2010. In case of default, petitioner shall undergo simple imprisonment for three months. (iv) It is made clear that it shall be sufficient compliance with the direction for deposit of compensation if petitioner paid the compensation to respondent No.1 through her counsel in the trial court and respondent No.1 filed a statement in the trial court through her counsel acknowledging receipt of the compensation within the said period. Petitioner shall appear in the trial court on 30.1.2010 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv