IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Crl.Rev.Pet.No. 1888 of 2009() ------------------------------ CRA.557/2007 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.410/2003 of JUDICIAL FIRST CLASS MAGISTRATE, KOTHAMANGALAM .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- M.H.SIDHIQUE, S/O.M.H.HASSAN KUNJU, AGED 40 YEARS, MARATTIKKUNNEL HOUSE, THODUPUZHA KARA, THODUPUZHA VILLAGE. BY ADV. SRI.ANIL GEORGE SRI.JOBY JACOB PULICKEKUDY RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------ 1. KUNJACHAN A.KURUVILA, S/O.KURUVILA, AGED ABOUT 68 YEARS, ANACHIRAYIL HOUSE, KUROOR KARA, KOTHAMANGALAM VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 SRI.S.SREEKUMAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17.6.2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1888 of 2009 -------------------------------------- Dated this the 17th day of June, 2009. ORDER Respondent No.1 appears through counsel. Public Prosecutor takes notice for respondent No.2. 2. Petitioner faced trial in the court of learned Judicial Magistrate of First Class, Kothamangalam in C.C.No.410 of 2003 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act) on a private complaint preferred by respondent No.1. Case is that petitioner borrowed Rs.1,00,000/- from him and for the discharge of that liability issued Ext.P1, cheque dated 16.2.1999 which was dishonoured for insufficiency of funds on 31.3.1999. On getting dishonour intimation, respondent No.1 issued statutory notice to the petitioner on 13.4.1999 by registered post. Notice was returned as refused. Dishonour of the cheque for the reason stated above is proved by Ext.P2. Issue of statutory notice by registered post is proved by Exts.P4 and P6. Ext.P5 is the registered notice returned unclaimed. Courts below observed that notice was returned 'refused' which amounted to deemed service of notice on petitioner. There is no reason to interfere with the findings of the courts below as to the cause of dishonour, demand and deemed service of notice. 3. Respondent No.1 gave evidence as PW1 and testified to the transaction. According to the petitioner, his father was operating a bus and a Crl.R.P.No.1888/2009 2 relative of respondent No.1 was conducting a body building workshop. While so, petitioner's father entrusted a bus chassis for body building in that workshop. Proprietor of the workshop wanted a blank cheque as security. Accordingly signed blank cheque of the petitioner was entrusted with the proprietor of the workshop without his consent. Petitioner examined DW1, his employee. DW1 supported the petitioner. He stated that he got the cheque from the office of the petitioner and entrusted it with the father of respondent No.1. But in cross examination he could not deny whether Ext.P1, cheque involved in this case was handed over to respondent No.1 by the petitioner for the discharge of liability to the tune of Rs.1,00,000/-. DW1 claimed that the cheque he had handed over to the father of respondent No.1 bore a seal but Ext.P1 did not contain any such seal. Courts below evaluated the evidence let in by both parties and found that defence set up by petitioner is not acceptable and held him guilty under Section 138 of the Act. It is that finding which is under challenge in this revision. I stated from Ext.P5 that registered notice issued to the petitioner on behalf of respondent No.1 was refused and hence returned. That refusal indicated that the petitioner was aware of the claim being made on behalf of respondent No.1. The negotiable instrument drawn on the account maintained by petitioner has been produced by respondent No.1 from his possession. In that situation petitioner had to explain the circumstances under which the cheque happened to be in the custody of respondent No.1. In this case, he has examined DW1 who is none other than his own employee. But, DW1 was not able to say whether it is Ext.P1 he is said to have handed over to the father of respondent No.1. It is Crl.R.P.No.1888/2009 3 after consideration of these circumstances that courts below held in favour of due execution of the cheque as testified by respondent No.1(PW1). Nothing is brought out to disbelieve the evidence of respondent No.1. Courts below in these circumstances are justified in holding that petitioner issued the cheque in question for the discharge of a legally enforceable debt/liability and that he failed to rebut the presumption under Section 139 of the Act. Hence conviction of the petitioner is legal and proper and required no interference. 4. What remained is whether sentence imposed is excessive. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months and directed him to pay compensation of Rs.1,00,000/- with interest at the rate of 12% per annum from 29.3.1999 till date of payment with default sentence of three months. Appellate court modified the sentence as fine of Rs.1,00,000/- and in default of payment to undergo simple imprisonment for one month. The cheque which is dishonoured is dated 16.2.1999. Notice of dishonour was issued on 13.4.1999. Therefore, commission of the offence was before Section 143 of the Act was amended with effect from 6.2.2003. Section 143 of the Act empowers the magistrates to impose fine double the amount covered by the cheque notwithstanding Section 29(2) of the Code of Criminal Procedure (for short, “the Code”). In other words, as on the date of commission of the offence in this case, a magistrate of first class could not have imposed fine exceeding Rs.5,000/- for the offence punishable under Section 138 of the Act. If that be so, appellate court could not have imposed fine of Rs.1,00,000/- exceeding the power which the trial court had under Section 29(2) Crl.R.P.No.1888/2009 4 of the Code. Therefore it was illegal for the appellate court to impose fine exceeding Rs.5,000/-. 5. Counsel for respondent No.1 submitted that revisional court is competent to award compensation under Section 357(4) of the Code, if necessary, by imposing sentence of imprisonment till rising of the court. It is true that while hearing an appeal from a conviction and sentence at the instance of the accused, the appellate court cannot alter the sentence so as to enhance it but so far as the power of the High Court in revision is concerned, Section 401 of the Code enables the High Court to exercise even suo motu power when illegality is shown, to interfere even when the records of the case has not been called for by itself. It was also permissible for respondent No.1 to have challenged the judgment of the appellate court by way of revision and seek enhancement of the sentence. Hence, it is not as if the High Court is without power to interfere in such situation and if necessary enhance the sentence. As regards the power of appellate court in such circumstances, a learned Single Judge of this Court in Radhakrishnan Nair v. Padmanabhan (2000 (2) KLT 349) held that the appellate court was justified while setting aside the sentence of fine exceeding Rs.5,000/- in awarding simple imprisonment till rising of the court and directing payment of compensation. That being the position of law, there is no reason why this Court should not interfere to set at right the illegality committed by the appellate court. Section 357(4) of the Code also permits the High Court while exercising the power of revision to award compensation. In the facts and circumstances of the case, I am satisfied that the sentence can be Crl.R.P.No.1888/2009 5 altered by imposing imprisonment on the petitioner till rising of the court and at the same time directing him to pay compensation of Rs.1,00,000/- to respondent No.1. 6. Learned counsel requested six months' time to deposit the compensation in the trial court. Counsel states that petitioner is not in a position to raise the sum of Rs.1,00,000/- immediately. I heard counsel for respondent No.1 also on the request made by counsel for petitioner. In the circumstances stated by the learned counsel I am inclined to grant four months' time to the petitioner to deposit the compensation in the trial court. In case of non-payment, petitioner has to undergo simple imprisonment for three months. Resultantly, this revision is allowed in part to the following extent: i. Sentence imposed by the appellate court is set aside. Instead, petitioner is sentenced to undergo simple imprisonment till rising of the court. ii. Petitioner is directed to deposit in the trial court for payment to respondent No.1 Rs.1,00,000/- ( Rupees One lakh only) as compensation under Section 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 will be sufficient compliance with the direction for payment of compensation 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 aforesaid time. Crl.R.P.No.1888/2009 6 iv. Petitioner shall appear in the trial court on 20.10.2009 to receive the sentence. Crl.M.A.No.5770 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks