IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.Rev.Pet.No. 3781 of 2008 ------------------------------ CRA.204/2006 of ADDL.SESSIONS COURT FAST TRACK COURT NO.III (ADHOC), MANJERI CC.105/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... REVN. PETITIONER: DEFACTO COMPLAINANT ---------------------------------------- MOIDEEN HAJI, S/O USMAN, KUNNAKKAT HOUSE, P.O.KALPAKANCHERY, REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL RAZAK, S/O KUNHIMOIDEEN HAJI, KAVUNGAL HOUSE, PERMANNA. BY ADV. SRI.K.RAMACHANDRAN RESPONDENTS: APPELLANT/ACCUSED & STATE ---------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ABOOBACKER, S/O KAMAL, KOTTARATHIL CHERIYA CHAILOT, HAZEENA MANZIL, AKKAMPARAMP P.O., P.R.NAGAR, CHAVASSERY, KANNUR. BY PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/5/2011, THE COURT ON 30/6/2011 PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P.NO. 3781 OF 2008 ======================= Dated this the 30th day of June 2011 ORDER This revision petition is filed by the complainant against the judgment dated 17/7/2008 passed by the Additional Sessions Judge,Manjeri in Crl.A. No.204/2006. By the impugned judgment, the learned Sessions Judge had upheld the judgment dated 31/3/2006 in C.C.No.105/2003 passed by the learned Judicial First Class Magistrate, Tirur. By the said judgment, the learned Magistrate had found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. He was convicted and sentenced to undergo simple imprisonment for six months under Section 138 of the Negotiable Instruments Act. The accused was further directed to pay Rs.5,55,000/- to the complainant as compensation under Section 357 Cr.P.C. and in default of payment to undergo simple imprisonment for three months. The appellate court upheld the conviction of the accused CRRP 3781/2008 -2- for the offence under Section 138 of the N.I. Act and the sentence of simple imprisonment for six months awarded by the learned Magistrate and interfered with the payment of compensation of Rs.5,55,000/- under Section 357 Cr.P.C. which was set aside. Accordingly, the appeal was partly allowed confirming the conviction and sentence and reversing the order to pay compensation under Section 357 Cr.P.C. This revision petition has been preferred by the complainant challenging the reversal of the order to pay compensation under Section 357 Cr.P.C. in favour of the complainant. 2. Heard the learned counsel for the revision petitioner and also the learned Public Prosecutor. 3. It is submitted by the learned counsel for the revision petitioner that the finding of the appellate court in so far as it vacates the directions of the learned Magistrate to pay the amount of compensation is illegal and improper which requires an interference of this Court. It is also submitted by the learned counsel that the learned Magistrate after trial and after considering the evidence adduced by both parties convicted and sentenced the accused to undergo simple imprisonment for six CRRP 3781/2008 -3- months and also to pay the cheque amount of Rs.5,55,000/-as compensation to the revision petitioner as per Section 357 Cr.P.C. Admittedly, the amount covered under the cheque has not been paid and though the accused disputed his liability covered under the cheque, all the contentions were concurrently found against him and the learned Magistrate correctly found that the accused was liable to pay the cheque amount as compensation under Section 357(3)Cr.P.C. Thus the point for consideration in this revision petition is whether a proper sentence has been imposed on the 2nd respondent/accused. 4. The learned Magistrate and the learned Sessions Judge came to the conclusion that all the ingredients of the offence punishable under Section 138 of the N.I. Act have been established by the revision petitioner/complainant. Accordingly, the learned Magistrate and the learned Sessions Judge convicted the accused thereunder. The learned Sessions Judge confirmed the substantive sentence of imprisonment of the accused to undergo simple imprisonment for six months for the offence under Section 138 of the N.I.Act. After entering into such a conclusion, the learned Sessions Judge found that the CRRP 3781/2008 -4- complainant has not sustained any loss and hence is not entitled to compensation. This court in the decision reported in M.S.Anil Kumar v. Shamy(2002(2)K.L.J.711 adverted to the principles governing imposition of sentence in a prosecution under Section 138 of the N.I.Act. Paragraph 16 of the said decision reads as follows: “16.I am in these circumstances of the opinion that normally in a successful prosecution under Section 138 of the Negotiable Instruments Act a direction under Section 357 must follow. If there are sufficient and compelling reasons, the court must specify such reasons in the judgment and then only choose not to invoke the powers under Section 357 of the Criminal Procedure Code. All subordinate courts shall zealously ensure compliance with the above direction.” 5. The learned Sessions Judge has bye-passed this decision and has misinterpreted the settled position by relying on the decision of the Apex Court in Hari Krishnn and State of Haryana v. Sukhbir Singh & Others, AIR 1988 S.C.2127 that the ability of the accused is a very material and relevant CRRP 3781/2008 -5- fact to be looked into while awarding compensation under Section 357(1) or (3)Cr.P.C. In these circumstances, I find that an interference of this Court is absolutely necessary in the interest of justice in this revision petition. In an offence like this deterrent substantive sentence of simple imprisonment for six months is unnecessary and can be avoided and the complainant can be adequately compensated. The cheque amount can be awarded as compensation in favour of the revision petitioner/complainant and a default sentence also can be imposed against the accused. 6. In the result, a)this Crl.revision petition is allowed in part. (b)The impugned verdict of guilty and conviction of the second respondent under Section 138 of the N.I.Act are upheld. c)The sentence imposed on the 2nd respondent is modified and reduced. In supersession of the sentence imposed on the accused, he is sentenced under Section 138 of the N.I. Act to undergo imprisonment till rising of court. He is further directed to pay/deposit an amount ofRs.5,55,000/-, the entire cheque amount, as compensation under Section 357(3)Cr.P.C. within three months, i.e. on or before 30/9/2011 and in default of CRRP 3781/2008 -6- payment of compensation, he shall undergo simple imprisonment for two months. d)The second respondent/accused shall appear and his sureties shall produce him before the concerned Magistrate on 1/10/2011 for execution of the modified sentence hereby imposed. e) Needless to mention the learned Magistrate shall be at liberty to initiate proceedings against the accused and his sureties if he does not appear before the learned Magistrate as directed. Send back the records to the trial court forthwith. Sd/- M.C. HARI RANI JUDGE ks. TRUE COPY P.S. TO JUDGE