IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 CRL.REV.PET.NO. 2502 OF 2009() ------------------------------------------------- CRA.39/2008 OF ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.265/2007 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER(S) - APPELLANT - ACCUSED: ------------------------------------------------------------- E.P. SHOWKKATHALI @ KUNHUTTY, S/O. KUNHIMOIDEEN, VATTOLI HOUSE, UDIRAMPOYIL, PULLANGODE, KALIKKAVU, VILAMBUR, MALAPPURAM DIST. BY ADV. SRI.K.VIDYASAGAR RESPONDENT(S) - COMPLAINANT & STATE: ------------------------------------------------------- 1. P.K. CHANDRAN, S/O. NARAYANAN, PUZHIKKUTH HOUSE, NEELANCHERI P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2502 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th 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 which is not prejudicial to him. Public Prosecutor takes notice for respondent No.2. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Adhoc-III), Manjeri in Crl. Appeal No.39 of 2008 confirming conviction but modifying sentence of petitioner for offence punishable under Section 138 of the Negotiable Instruments Act. Petitioner faced trial in the court of learned Judicial First Class Magistrate-I, Manjeri in C.C. No.265 of 2007. According to respondent No.1, petitioner borrowed Rs.1,00,000/- and for repayment of that amount issued Ext.P1, cheque dated 7.3.2007. Dishonour of that cheque for insufficiency of funds is proved by Exts.P2 and P3. Service of notice on the petitioner is proved by Exts.P4 and P5. Respondent No.1 gave evidence as P.W.1 and testified to his case. Petitioner contended that he had some transaction with one Dileep. A signed blank cheque was given to Dileep as security and Dileep handed over that cheque to respondent No.1 and he misused it. Courts below did not accept that contention. It is contended by CRL. R.P. No.2502 of 2009 -: 2 :- learned counsel that due execution of the cheque is not proved. 3. It is not disputed, and proved by respondent No.1 that Ext.P1 is drawn by petitioner on the account maintained by him. According to petitioner Ext.P1, cheque was given as security to Dileep who is stated to have handed over the same to respondent No.1. In that regard there is only the suggestion put to respondent No.1 which he denied. There is no evidence to show that Dileep handed over the cheque to respondent No.1. Courts below found in favour of due execution of the cheque. I do not find reason to differ. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months. Petitioner was directed to pay compensation of Rs.1,00,000/- to respondent No.1. But no default sentence was provided. Appellate court while confirming the substantive sentence set aside the direction for payment of compensation under Sec.357(3) of the Code of Criminal Procedure (for short, “the Code”) holding that compensation need be awarded only if loss is caused to respondent No.1, in this case respondent No.1 has the remedy of recovering the amount by recourse to civil proceeding and hence it cannot be said that respondent No.1 is put to loss. Learned counsel contended that sentence awarded is excessive. CRL. R.P. No.2502 of 2009 -: 3 :- 5. Section 357(4) of the Code empowers the revisional court to award compensation. I have heard counsel for petitioner on the necessity to award compensation. Learned counsel maintains that petitioner had not borrowed amount from respondent No.1. That contention was found against by the courts below which I found there is no reason to interfere. Petitioner borrowed Rs.1,00,000/- and for repayment of that amount issued the cheque which has been dishonoured. It is not possible to say that on account of the act of petitioner, respondent No.1 is not put to loss. Cheque given to him for repayment of the loan was dishonoured. That resulted in loss to respondent No.1. That respondent No.1 may have a remedy of recovery of the amount by way of civil suit is no ground to say that the act of petitioner in causing the cheque to be dishonoured did not put respondent No.1 to loss. Learned Additional Sessions Judge has not adverted to the decisions of this Court which are to the effect that normally a conviction for offence under Sec.138 of the Act must be followed by a direction for payment of compensation. In this case evidence shows that petitioner borrowed Rs.1,00,000/- from respondent No.1. Petitioner is liable to pay that amount to respondent No.1. Invoking power under Sec.357(4) of the Code of this CRL. R.P. No.2502 of 2009 -: 4 :- Court it is directed that petitioner shall pay compensation of Rs.1,00,000/- to respondent No.1 failing which petitioner has to undergo simple imprisonment for three months. 6. So far as substantive sentence is concerned, considering the nature of offence and object of legislation simple imprisonment till rising of the court is sufficient in the ends of justice. 7. Learned counsel requested six months’ time to deposit compensation. It is stated that petitioner is not able raise the amount immediately. It is also requested that petitioner may be permitted to pay compensation directly to respondent No.1. Considering the circumstances stated by learned counsel petitioner is granted time till 30.12.2009 to deposit the compensation. Resultantly, this revision petition is allowed in part to the following extent: (i) Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. (ii) Petitioner is directed to deposit in the trial court Rs.1,00,000/- (Rupees One lakh only) as compensation for payment to CRL. R.P. No.2502 of 2009 -: 5 :- respondent No.1 under Sec.357(3) of the Code on or before 30.12.2009 failing which petitioner 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 petitioner paid compensation to respondent No.1 through his counsel in the trial court and respondent No.1 filed a statement in the trial court through his counsel acknowledging receipt of compensation within the said period. Petitioner shall appear in the trial court on 31.12.2009 to receive the sentence. Until then execution of warrant if any, against petitioner will remain in abeyance. THOMAS P.JOSEPH, JUDGE. vsv