IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 CRL.REV.PET.NO. 1943 OF 2009() ----------------------------------------- CRA.40/2003 OF ADDL. SESSIONS COURT (ADHOC), THALASSERY CC.380/1999 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED; -------------------------------------------------------------- E.N.ABOOBACKER, S/O.MOIDEENKUTTY, EECHAN NALAKATH, SIVAPURAM AMSOM DESOM. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE: ---------------------------------------------------------------------------------- 1. AMMAD HAJI, S/O.POKKER, ASARIKANDY HOUSE, ARUR AMSOM DESOM, VADAKARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FORT ADMISSION ON ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1943 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of June, 2009 O R D E R -------------- Learned Public Prosecutor takes notice for respondent. Notice to respondent No.1 is dispensed with in view of the order I am proposing to make and which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Additional Sessions Judge (Ad-hoc-I), Thalassery in Crl.Appeal No.40 of 2003 confirming conviction and sentence of petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act'). According to respondent No.1, petitioner and himself were partners in a business and at the time accounts were settled Rs.1,50,000/- was due to respondent No.1. For payment of that amount petitioner issued two cheques, Exts.P1 and P2 dated 23.2.1999 for Rs.75,000/- each. Those cheques were dishonoured for insufficiency of funds as proved by Ext.P3, memo dated 16.7.1999. Respondent No.1 issued notice to petitioner on 28.7.1999 intimating dishonour and demanding payment of the amount. Issue and service of notice are proved by Exts.P4 to P6. Exhibit P7 is the ledger extract of the account maintained by petitioner. Respondent No.1 gave CRL. R.P. No.1943 of 2009 -: 2 :- evidence as P.W.1 regarding due execution of the cheque. According to the petitioner there was no such settlement of accounts, no amount was due and he had not given any cheque to respondent No.1. Instead, during the time they were engaged in joint business respondent No.1 committed theft of the cheques. Courts below did not accept the explanation of petitioner and found that he issued the cheques for the discharge of legally enforceable debt/liability and that petitioner failed to rebut the presumption under Sec.139 of the Act. That finding is under challenge. 3. Even as per the version of petitioner, he had joint business with respondent No.1. According to respondent No.1, accounts were settled and for the amount due to him in that regard petitioner issued the cheques. It is not disputed that Ext.P1 and P2 are signed by the petitioner and drawn on the account maintained by him. If the cheques were stealthily taken by respondent No.1 as pleaded by petitioner, latter would have intimated that fact to his bank and requested for stoppage of payment. Petitioner has no case that he did so. He did not even care to give a reply to the notice served on him. Nothing is brought out to disbelieve the version of respondent No.1 regarding the transaction and execution of the cheque. Courts below CRL. R.P. No.1943 of 2009 -: 3 :- found in favour of due execution of the cheques. I find no reason to interfere with that finding. Hence conviction is unassailable. 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for ten months and directed him to pay compensation of Rs.50,000/-, with a default sentence of imprisonment for two months for non-payment of compensation. Appellate court did not interfere with the substantive sentence, direction for payment of compensation and default sentence. Learned counsel for petitioner submitted that leniency may be shown in the matter of sentence. He also requested that petitioner may be given four months’ time to deposit the compensation in the trial court. 5. So far as substantive sentence is concerned, I am inclined to think, in the nature of the offence committed and which is not shown to be involving any moral turpitude that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time respondent has to be compensated for the loss caused to him. Exhibits P1 and P2 which are upheld by the courts below are for a sum of Rs.1,50,000/-. Courts below accepted the case of respondent No.1 that on settlement of accounts Rs.1,50,000/- was due to him and for repayment of that amount petitioner issued the cheques. In that CRL. R.P. No.1943 of 2009 -: 4 :- situation there is no justification in confining the compensation payable to respondent No.1 to Rs.50,000/-. Compensation means ‘just equivalent’. Here, loss caused to respondent No.1 due to dishonour of cheques and non-payment of the amount within the statutory period is to the tune of Rs.1,50,000/-. Therefore just compensation for that would be to direct payment of Rs.1,50,000/-. Under Section 357(4) of the Code of Criminal Procedure revisional court is also entitled to direct payment of compensation. That cannot be treated as part of sentence. Hence enhancement in the amount of compensation payable would not amount to enhancement of sentence. This is a case where petitioner should be directed to pay compensation of Rs.1,50,000/- to respondent No.1. In case of non-payment, petitioner has to undergo simple imprisonment for three months. Considering the amount involved and the difficulties expressed by petitioner as to his raising the amount I am inclined to grant four months to the petitioner to make payment. In the result, revision is allowed in part to the following extent: (i) Substantive sentence awarded by the courts below is modified as simple imprisonment till rising of the court. CRL. R.P. No.1943 of 2009 -: 5 :- (ii) Petitioner is directed to deposit in the trial court Rs.1,50,000/- (Rupees One lakh and fifty thousand only) for payment to respondent No.1 as compensation under Sec.357(3) of the Code within four months from this day, failing which he shall undergo simple imprisonment for three months. (iii) It is made clear that it shall be sufficient compliance of condition (ii) if petitioner paid the 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 the compensation within the said period of four months. Petitioner shall appear in the trial court on 26.10.2009 to receive the sentence. THOMAS P.JOSEPH, JUDGE. vsv