IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 CRL.REV.PET.NO. 2394 OF 2009() -------------------------------------------- CRA.508/2007 OF ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.303/2002 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... REVN. PETITIONER(S): 2ND RESPONDENT/COMPLAINANT: --------------------------------------------------------------------------------- RAJASREE, D/O.K.S.RAJAPPAN, KARTHIKA NIVAS, MAHATMA ROAD, PONEKKARA, EDAPPALLY P.O., KOCHI NOW RESIDING AT KARTHIKA, A.R BALACHANDRAN ROAD, THIRUVANKULAM P.O., THIRUVAMKULAM VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.S.K.MURALEEDHARA KAIMAL RESPONDENT(S): APPELLANT/ACCUSED & STATE: -------------------------------------------------------------------- 1. LALITHA, W/O.SADASIVAN PILLAI, AGED 58 YEARS, CHANGAMPUZHA HOUSE, ELAMAKKARA P.O.,KOCHI. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S. HRITHWIK SRI.M.RAMESH CHANDER FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2394 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the day of July, 2009 O R D E R -------------- Heard both sides. 2. Complainant in a prosecution under Section 138 of the Negotiable Instruments Act, aggrieved by the legality and extent of sentence awarded by the appellate court has come up in revision. According to the petitioner, respondent No.1 borrowed Rs.1,40,000/- from her and issued cheque for the discharge of that liability. Leaned magistrate found respondent No.1 guilty, convicted and sentenced her to undergo simple imprisonment for three months. There was also a direction for payment of compensation of Rs.1,40,000/- to the petitioner with a default sentence of imprisonment for one month. On appeal at the instance of respondent No.1 learned Additional Sessions judge while confirming the conviction did not provide any substantive sentence and directed payment of compensation without providing for any default sentence. Petitioner is aggrieved and has come up in revision. It is submitted by learned counsel that judgment of the appellate court to that extent is illegal. 3. A conviction has to be followed by a sentence as provided under law. Under Section 357(3) of the Code of Criminal Procedure (for short, “the Code”) there could be a direction for payment of CRL. R.P. No.2394 of 2009 -: 2 :- compensation only when there is a sentence of imprisonment. That is because direction for payment of compensation is not sentence or part of it. In this case appellate court has not imposed sentence on respondent No.1. To that extent there is an illegality committed by the appellate court. It is also seen that notwithstanding that courts are authorised to impose default sentence for non-payment of compensation there is no such default sentence imposed by the appellate court. Illegality committed by the appellate court has to be corrected by this Court invoking Sections 397 and 401 of the Code. Considering the circumstances of the case I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. In case of non-payment of compensation respondent No.1. has to undergo simple imprisonment for five months. 4. Learned counsel for respondent No.1 requested six months’ time to deposit the compensation in the trail court. Petitioner and respondent are closely related. Considering the circumstances stated by learned counsel I am inclined to grant time till 30.12.2009 to deposit compensation. Resultantly, this revision petition is allowed in part to the following extent: (i) Respondent No.1 is sentenced to undergo simple imprisonment till rising of the CRL. R.P. No.2394 of 2009 -: 3 :- court under Section 138 of the Act. (ii) Respondent No.1. is granted time till 30.12.2009 to deposit the compensation in the trial court as ordered by the appellate court. In case of default respondent No.1 has to undergo simple imprisonment for five months. (iii) It is made clear that it shall be sufficient compliance of the direction for deposit of compensation if respondent No.1. paid the compensation to petitioner through her counsel in the trial court and petitioner filed a statement in the trial court through her counsel acknowledging receipt of the compensation within the said period. Respondent No.1 shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against respondent No.1 will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv