IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 Crl.MC.No. 3800 of 2006 ------------------------- CRRP.35/2002 of I ADDL. SESSIONS COURT, KOLLAM CC.598/1998 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... PETITIONER: REVISION PETITIONER/COMPLAINANT ---------------------------------------------- R.VASUDEVAN PILLAI, S/O.RAGHAVAN PILLAI, MAMOOTTIL VEEDU, NADUKUNNU MURI, MELILA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DIST. BY ADV. SRI.LEGY ABRAHAM SRI.C.N.SIVANKUTTY RESPONDENTS: RESPONDENTS/ACCUSED --------------------------------- 1. SURESH, S/O.PADMANABHN, SURESH BHAVAN, ALU CHERRY, KALAYANADU MURI, VALAKKODU VILLAGE, PATHANAPURAM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU ADV. SRI.ANCHAL C.VIJAYAN FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.M.C.NO. 3800 of 2006 ======================= Dated this the 2nd day of April 2009 ORDER The petitioner, who is the complainant in C.C.No.598/1998 on the file of the Court of Judicial Magistrate of First Class-III Punalur, is the revision petitioner in Crl.R.P.No.35/2002 on the file of the Ist Additional Sessions Court, Kollam. The first respondent herein is the respondent before the Sessions Court and the accused before the Magistrate's court. This petition is filed by the petitioner herein under Section 482 of the Code of Criminal Procedure with the prayer to set aside the order dated 18-2-2006 in Crl.R.P.No.35/2002 of the Ist Additional Sessions Court, Kollam and also to set aside the judgment dated 29-6-2002 in C.C.No.598/1998 passed by the Judicial First Class Magistrate-III, Punalur and to award maximum punishment to the accused/first respondent under Section 138 of the Negotiable Instruments Act. CRMC3800/2006 -2- 2. The facts of the case as stated in this petition are as follows:- The first respondent/accused borrowed Rs.60,000/- from the petitioner and issued a cheque for Rs.60,000/- drawn in favour of State Bank of Travancore, Punalur Branch dated 14-5-1998 towards repayment of the said amount. The complainant presented that cheque for encashment which was dishonoured on the ground of insufficiency of funds in the account of the respondent. Subsequently, a registered notice was issued by the complainant to repay the amount. But even after the receipt of notice, the first respondent did not repay the amount and no reply has been sent. Accordingly, the complainant initiated proceedings against the first respondent and filed the complaint before the Court of Judicial First Class Magistrate-III, Punalur for the offence punishable under Section 138 of the Negotiable Instruments Act. The learned Magistrate as per Annexure-A2 judgment found that the first respondent was guilty under Section 138 of the Negotiable Instruments Act and convicted and sentenced to pay a fine of Rs.5,000/- and in default, simple imprisonment for two months. It was also ordered that if the fine amount is realised, a sum of Rs.4500/- CRMC3800/2006 -3- will be paid to PW1 under Section 357(1) of Cr.P.C. The complainant preferred revision before the Ist Additional Sessions Court, Kollam and as per order dated 18-2-2006 in Crl.R.P.No.35/2002, the learned Sessions Judge confirmed the finding of the trial court and dismissed the revision petition. Those concurrent findings regarding the sentence has been challenged by the petitioner before this Court and the prayer is to award maximum punishment to the first respondent. 3. Heard the learned counsel appearing for the petitioner and the first respondent. 4. It is submitted by the learned counsel appearing for the petitioner that the first respondent was found guilty by both the courts below under Section 138 of the Negotiable Instruments Act, but awarded only lesser punishment by sentencing the first respondent to pay a fine of Rs.5,000/- and out of which Rs.4500/- to be paid to the complainant under Section 357(1) of Cr.P.C. According to the learned counsel, to meet the ends of justice maximum punishment should be awarded to the accused. It is submitted by the learned counsel for the first respondent that both the courts below have awarded sufficient punishment to CRMC3800/2006 -4- the first respondent/accused and there is no ground to interfere with that concurrent findings. The fine of Rs.5,000/- was ordered by the learned Magistrate by invoking the discretionary power of that court and in the light of the decision reported in Bhaskaran v. Balan, [1999 (3)K.L.T.440(SC)]. It is held in this decision as follows: “The trial in this case was held before a Judicial Magistrate of first class who could not have imposed a fine exceeding Rs.5,000/-besides imprisonment. The High Court while convicting the accused in the same case could not impose a sentence of fine exceeding the said limit. It is true, if a judicial magistrate of first class were to order compensation to be paid to the complainant from out of the fine realised the complainant will be the loser when the cheque amount exceeded the said limit. In such a case a complainant would get only the maximum amount of rupees five thousand. However, the magistrate in such cases can alleviate the grievance of the complainant by making resort to S.357.(3)of the Code. CRMC3800/2006 -5- No limit is mentioned in the sub-section and therefore, a magistrate can award any sums as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a court of magistrate of first class in respect of a cheque which covers an amount exceeding Rs.5,000/- the court has power to award compensation to be paid to the complainant.” In a decision reported in Anilkumar v. Shammy (2002(3) K.L.T.852), this Court held as follows: “The contention that S.357(3) of the Criminal procedure Code permits payment of “compensation” only and that the amount due under the cheque cannot be reckoned as compensation for the purpose of S.357 (3)does not also appeal to me at all. According to me the expression “compensation” is used under S.3.57(3) not in any technical sense, and must certainly include payment due to the victim under the cheque in respect CRMC3800/2006 -6- of which the offence under S.138 of the Negotiable Instruments Act is committed. It is unnecessary, considering the purpose which S.357(3)has to serve, to import any special or technical meaning to the expression “compensation” used there. The fact that power under S.138 are misused by unscrupulous money lenders is urged as a reason which should persuade the courts not to invoke the powers under S.357(3) in a prosecution under S.138 of the Negotiable Instruments Act. I find absolutely no merit in this contention also. A verdict of guilty is entered under S.138 of the Negotiable Instruments Act only if the court is satisfied beyond reasonable doubt that all the ingredients of the offence are established including the ingredient that the cheque was issued for the discharge of a legally enforceable debt/liability. Possibility of misuse must be deemed to be eliminated as the invocation of powers under s.357 (3) is to be considered only after a verdict of guilty and conviction.” CRMC3800/2006 -7- 5. Considering the dictum laid down in the above mentioned decisions, I find that to meet the ends of justice this case can be remitted to the Revisional Court with a direction to dispose of it in accordance with law and in the light of the above decisions. Therefore, the findings of the courts below with regard to the sentence only is set aside and the case is remitted to the Ist Additional Sessions Court, Kollam to decide the point in the light of Section 357(3) of Cr.P.C. and also the decision of this Court in Anilkumar v. Shanny (2002)(3)K.L.T.852) with regard to compensation to be awarded to the complainant. In the result, this Crl.M.C.is allowed to that extent. M.C. HARI RANI JUDGE ks.