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. 2396 OF 2009() ------------------------------------------- CRA.185/2008 OF ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM ST.2198/2005 OF JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER(S): /COMPLAINANT ---------------------------------------------------- K.RADHAMANI, W/O.SUKUMARAN, RADHA VILLA, ANGAMALY, ERNAKULAM DISTRICT. BY ADV. SRI.PRAMOD J.DEV SRI.V.P.JOLY RESPONDENT(S): ACCUSED --------------------------------------- 1. M.T.RAJU, S/O.THANKAPPAN, MAHESWARATH HOUSE, SANDHI NAGAR, COLONY PADY, EDATHALA P.O., ALUVA, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK R2 R1I.V.N.SUNIL KUMAR 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.2396 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of July, 2009 O R D E R -------------- Heard both sides. 2. Complainant has come up in revision against legality and inadequacy of the sentence imposed by the appellate court. Petitioner prosecuted respondent No.1 for offence punishable under Section 138 of the Negotiable Instruments Act alleging that cheque for Rs.1,80,000/- issued by respondent No.1 for the discharge of a liability was dishonoured for insufficiency of funds and in spite of dishonour intimation and demand for payment respondent No.1 did not pay the amount. Leaned magistrate fond respondent No.1 guilty, convicted and sentenced him to undergo simple imprisonment for 1½ years. There was also a direction for payment of compensation of Rs.1,80,000/- to the petitioner with a default sentence of imprisonment for five months. On appeal at the instance of respondent No.1 learned Additional Sessions Judge confirmed the conviction but without providing any sentence directed payment of compensation and that too, without providing any default sentence. Petitioner is aggrieved and has come up in revision. It is submitted by learned counsel that judgment of the appellate court shows that there is no CRL. R.P. No.2396 of 2009 -: 2 :- sentence imposed on respondent No.1 and at any rate for non- payment of compensation default sentence ought to have been imposed. 3. I am inclined to think that so far as sentence is concerned appellate court has committed an illegality. A conviction has to be followed by a sentence as provided under law. A direction for payment of compensation is not a sentence or part of it. Under Section 357(3) of the Code of Criminal Procedure (for short, “the Code”) there could be a direction for payment of compensation only when there is a sentence of imprisonment. Therefore to that extent the judgment of the appellate courts suffers from an illegality. Courts are authorised to impose default sentence for non-payment of compensation which has not been provided by the appellate court. In exercise of the power under Sections 397 and 401 of the Code that illegality has to be corrected and I do so. 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 has requested six CRL. R.P. No.2396 of 2009 -: 3 :- months’ time to deposit compensation in the trail court. Petitioner and respondent No.1 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 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 is made clear that it shall be sufficient compliance with the direction for deposit of compensation if respondent No.1. paid the compensation to petitioner through his counsel in the trial court and petitioner filed a statement in the trial CRL. R.P. No.2396 of 2009 -: 4 :- 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