IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 CRL.REV.PET.NO. 2554 OF 2009() ------------------------------------------- CRA.159/2006 OF II ADDL.SESSIONS COURT, KOLLAM CC.182/2003 OF JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ---------------------------------------------------------------- LATHIKIA, W/O. GOPALAKRISHNAN, AGED 50 YEARS,NEEROZHIKKAL HOUSE, NIDHI PRIMARY SCHOOL, KOTTARAKKARA P.O. KOLLAM DISTRICT. BY ADV. SRI.PRATHEESH.P RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------------------- 1. STATE OOF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KANNAN, M.R.SAI SRUTHI, CUTCHERY P.O. KOLLAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/08/2009, ALONG WITH CRRC NO. 15 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2554 of 2009 AND CRL. R.C. NO. 15 OF 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 7th day of August, 2009 O R D E R -------------- Revision petition arises from the judgment of learned Additional Sessions, Kollam in Crl. Appeal No.159 of 2006 confirming conviction but modifying sentence of accused for offence punishable under Section 138 of the Negotiable Instruments Act. When this revision came up for hearing it was noticed that sentence imposed by the learned Additional Sessions Judge is illegal and hence I directed the Registry to register suo moto revision in exercise of the power under Section 401 of the Code of Criminal Procedure (for short, “the Code”). Accordingly Crl.R.C.No.15 of 2009 is registered and notice is given to counsel for accused. Parties are referred as complainant and accused. 2. Complainant came up with the version that accused borrowed Rs.3,00,000/- from him and issued Ext.P1, cheque dated 26.9.2002 for its repayment. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Service of Statutory notice on accused is proved by Exts.P4 to P6. Complainant gave evidence as P.W1 and stated to his case. According to the accused CRL. R.P. No.2554 of 2009 & CRL. R.C. No.15 of 2009 -: 2 :- she had given signed blank cheques to Geethakumari for her purposes and Ext.P1 is one of those signed blank cheques. Exhibit D1 is the copy of reply sent by accused. D.W.1 is the daughter of accused and stated that accused gave signed blank cheques to Geethakumari to facilitate loan for her. It was so done as Geethakumari had no bank account. D.W.1 claimed that Ext.P1 is one among those signed blank cheques. Courts below did not accept the evidence of D.W.1. It is contended that finding of the courts below regarding due execution of the cheque is not correct. 3. It is true that accused denied any transaction with complainant or issuing cheque to him while latter asserted that accused borrowed R.3,00,000/- from him and issued the cheque. It is admitted by accused that Ext.P1 contains her signature and is drawn on the account maintained by her. Her case is that to facilitate Geethakumari availing loan she gave signed blank cheques to Geethakumari. D.W.1 also stated so. But it is not explained how Ext.P1 happened to be in the custody of the complainant. There is no evidence to show that Geethakumari had any transaction with the complainant. If that be so there is no explanation as to how Ext.P1, cheque happened to be in the custody of the complainant. It is also difficult to believe the version of the accused that she gave signed CRL. R.P. No.2554 of 2009 & CRL. R.C. No.15 of 2009 -: 3 :- blank cheque leaves to Geethakumari and she used the same for the purpose of availing loan. Apart from what D.W.1 stated there is no reliable evidence to show that Geethakumari had raised loans on the security of the signed blank cheque leaves given by the accused and at any rate Ext.P1 is one among those cheques. Cheque issued by the accused has been produced by the complainant. That created liability on the accused. The mere contention that signed blank cheques are given to somebody else is not sufficient. Courts below considered the evidence and found due execution of the cheque. There is little reason to interfere. 4. Learned magistrate sentenced the accused to undergo simple imprisonment for eight months and payment of fine of Rs.5,000/-. A default sentence of two months’ imprisonment was also provided. In appeal at the instance of the accused learned Additional Sessions Judge modified the fine as Rs.3,00,000/- and provided default sentence of three months. Commission of offence was in the year 2002. Section 143 of the Act was amended with effect from 6.2.2003. Before that amendment came into force a magistrate of First Class could not have imposed fine exceeding Rs.5,000/-. If that be so, appellate court also could not impose fine exceeding Rs.5,000/-. Therefore imposition of fine exceeding Rs.5,000/- is illegal and it is CRL. R.P. No.2554 of 2009 & CRL. R.C. No.15 of 2009 -: 4 :- therefore that Crl.R.C.No.15 of 2009 has been registered. Revisional court has to correct the illegality committed by the learned Additional Sessions Judge. Fine can be converted as compensation payable to the complainant. For awarding compensation under Sec.357(3) of the Code there should be a sentence of imprisonment. Having regard to the facts and circumstances of the case and nature of offence I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. 5. Learned counsel requested six months’ time to deposit the compensation. It is submitted that accused is unable to raise the amount immediately. Considering the circumstances stated by learned counsel and amount involved, accused is granted time till 5.1.2010 to deposit the compensation. Resultantly, revision petition No.2554 of 2009 is dismissed and Crl.R.C.No.15 of 2009 is allowed to the following extent: (i) Sentence of fine awarded by the learned Additional Sessions Judge is set aside. Accused is sentenced to undergo simple imprisonment till rising of the court. (ii) Accused is directed to deposit in CRL. R.P. No.2554 of 2009 & CRL. R.C. No.15 of 2009 -: 5 :- the trial court for payment to the complainant Rs.3,00,000/- (Rupees Three lakhs only) by way of compensation under Sec.357(3) of the Code on or before 5.1.2010 failing which she shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance with the direction for deposit of compensation if accused paid compensation to the complainant through her counsel in the trial court and the complainant filed a statement in the trial court through his counsel acknowledging receipt of the compensation within the said period. Accused shall appear in the trial court on 7.1.2010 to receive the sentence. Until then execution of warrant if any, against accused will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv