IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 Crl.Rev.Pet.No. 2418 of 2011() ----------------------------- CRA.448/2007 of ADDL. SESSIONS COURT (FAST TRACK COURT NO.II) -ADHOC, THRISSUR ST.3925/2003 OF JUDICIAL FIRST CLASS MAGISTRTECOURT-III, THRISSUR ................. PETITIONER/APPELLANT/ACCUSED : -------------------------------------------------------- V.H.AMEER ALI, S/O. V.K.HAMZA, VELLIKATH HOUSE, CHAKKANTHARA, P.O.NURANI, PALAKKAD, NOW RESIDING AT UMMER HAJI APARTMENT, KARUNANAGAR, PIRAYIRI, PALAKKAD-678004. BY ADVS. SRI.K.M.KURIAN SRI.P.VIJAYAKUMAR RESPONDENT / RESPONDENT / PETITIONER : ------------------------------------------------------------------ 1. EADAKKALATHUR CHITIES & LOANS (P) LTD., PALLITHAMEM COMPLEX, COCHIN DEVASAM BOARD BUILDING, THRISSUR-680001, REPRESENTED BY K.B.RAJENDRAN, S/O. K.BALACHANDRAN NAIR, KALLERI HOUSE, P.O.MUTTITHADI, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADVS. SRI.P.R.VENKETESH SRI.P.R.RAJA R2 BY PUBLIC PROSECUTOR SMT. SEENA R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2418 OF 2011 ----------------------------------------- Dated this the 18th day of October 2011 ORDER The revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently by the two courts below. Sentence imposed against the accused, as affirmed by the learned Sessions Judge in appeal, is imprisonment till the rising of the court with direction to pay compensation of `.1,98,910/- to the complainant with default term of simple imprisonment for a period of three months. 2. Notice given, 1st respondent has entered appearance. 3. The learned counsel for the petitioner submits that he has no arguments on merits to assail the conviction and sentence, but, only a request to be made for grant of two months time to pay the compensation awarded and, thus, avoid the default term of imprisonment. Cheque giving rise to the prosecution of the accused was of the year 2002 is pointed out by the learned counsel for the complainant to contend that there is no merit in the request made for further extension of time without making even a part payment of the compensation awarded. From the submissions made by the counsel on both sides, it is also seen that the complainant has filed a civil suit for the liability due from the accused under the cheque and the decree Crl.R.P No.2418 OF 2011 - 2 - obtained in such suit is being executed. It is also seen from the judgment rendered by the learned Sessions Judge that a direction has been issued that an amount of `.1,90,000/- out of the sum awarded as compensation, if paid or recovered from the accused, shall be given credit to the decree debt due to the complainant. I find no reason why the entire sum awarded as compensation, the sum of Rs.1,98,910/-, if realised, should not be given credit to the decree debt. Sub Section 5 of Section 357 of the Code of Criminal Procedure indicates that when a decree is passed in a subsequent civil suit instituted the compensation awarded under the Section by the Magistrate Court shall also be taken into account if such sum had been paid and recovered. That being so, in the realisation of the decree debt, whatever amount awarded as compensation by the Magistrate, if paid or realised, shall be given credit to. The fact that the decree as such does not provide for such adjustments, is no ground to deny the accused to have such benefits which otherwise would result in undue enrichment to the complainant/decree holder. 3. So far as the request made for extension of time for payment, I do note that there is some force in the submissions made by the counsel for the complainant that without making any part payment on the compensation awarded, the revision petitioner/accused is not at all justified in seeking for further time. However, having regard to the fact Crl.R.P No.2418 OF 2011 - 3 - that the time requested for is only two months, I find, that period can be granted to the accused to pay the compensation awarded and, thus avoid his incarceration which is imposed as punishment in default of payment. 4. Affirming the conviction and sentence the revision petitioner/accused is directed to appear before the Magistate on 19-12-2011 to serve out the imprisonment till the rising of the court and to report payment of the compensation. The learned Magistrate is directed to keep in abeyance the execution of sentence till the date fixed as above for his appearance, to enable him to pay the amount within such period. If compensation awarded is paid or realised, it shall be given credit to in the decree debt due to the complainant/ petitioner in the decree passed in Ext.P10 suit. In default of his appearance and nonpayment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge