IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 Crl.Rev.Pet.No. 2705 of 2009() ------------------------------ CRA.531/2008 of ADDL.SESSIONS COURT (ADHOC), ALAPPUZHA CC.658/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- K.P.THANKACHAN, S/O.PADMANABHAN, ALAPPUZHA URBAN CO-OPERATIVE BANK PICHU IYER JUNCTION, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S): COMPLAINANT: --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.T.RAJAPPAN, S/O.THANKAPPAN, KUNNATHEDATHU, KOTTAMKULANGARA, AVALOOKUNNU P.O., ALAPPUZHA. PUBLIC PROSECUTOR SRI.C.S.HRITIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2009, ALONG WITH CRRC NO. 17 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 2705 OF 2009 & Crl.R.C. No. 17 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2009 C O M M O N O R D E R This Criminal revision Petition is filed against the judgment of Learned Additional Sessions Judge(Fast Track Court I, Alappuzha) in Criminal Appeal No. 531/2008 confirming the conviction but setting aside the sentence imposed on the petitioner for offence punishable under Section 138 of the Negotiable Instrument Act(for short “the Act”). Case of respondent No.1 is that petitioner issued Ext.P1, Cheque for Rs.75,000/- for the discharge of the liability towards him. That cheque was dishonoured for insufficiency of funds as proved by Ext.P2. Respondent No.2 issued statutory notice to the petitioner intimating dishonour and demanding payment of the amount. Issue and service of statutory notice on petitioner are proved by Exts.P3 to P5. Respondent No.2 gave evidence as PW I and testified to his case. He claimed that petitioner owed Rs. 75,000/- to him and for payment of that amount issued the cheque. Contention raised by petitioner is that he had no transaction with Respondent No. 2 Crl.R.P. No. 2705 OF 2009 & Crl.R.C. No. 17 of 2009 : 2 : and that his wife Latha(DW I) had borrowed Rs. 25,000/- from one Rajappan and given his cheque as security to the said Rajappan. Wife of petitioner(DW I) gave evidence in that line. Courts below were not impressed by that evidence of DW I, found in favour of due execution of the cheque and held petitioner guilty. 2. It is contended in this revision that the concurrent finding entered by the courts below is erroneous. It is not disputed that Ext.P1 is signed by petitioner and drawn on the account maintained by him. It is true that petitioner has a case as to how else the cheque happened to be in the custody of Respondent No.1. But, to prove or probabilise that contention what is available is only the evidence of DW I who is none other than the wife of petitioner. There is no acceptable evidence to show that DW I had any transaction with Rajappan or that the cheque in question was given to the said Rajappan as claimed by petitioner. The negotiable instrument which created liability on petitioner is produced by Respondent No.2 from his possession. It is also seen that Inspite of statutory notice being served on petitioner, he has not replied. Courts below found that there is no reason to Crl.R.P. No. 2705 OF 2009 & Crl.R.C. No. 17 of 2009 : 3 : disbelieve the evidence of Respondent No.2. That finding is not shown to be vitiated by any illegality, irregularity or impropriety calling for interference in revision. 3. Learned magistrate sentenced petitioner to undergo simple imprisonment till raising of the court. There was also a direction for the payment of compensation of Rs.75,000/- to respondent No.2 and in default of payment to undergo simple imprisonment for three months. Appellate Court while confirming the direction for payment of compensation and default sentence set aside the substantive sentence. In effect as per the judgment of the appellate court there is no sentence but only a direction to the petitioner to pay the compensation and in default, to undergo simple imprisonment for three months. Since that appeared to be an illegality this court directed the registry to register revision in exercise of the power of this court under Section 401 of the Code of Criminal Procedure (for short “the Code”). Notice was given to the petitioner through his counsel. I have heard the counsel for the petitioner and the public prosecutor on the suo-motu revision also. Crl.R.P. No. 2705 OF 2009 & Crl.R.C. No. 17 of 2009 : 4 : 4. Every conviction has to be followed by a sentence. Under section 357 (3)of the Code of Criminal Procedure, direction for payment of compensation can be made only when there is a sentence of imprisonment(imprisonment alone). Compensation is not part of the sentence. Hence, it was illegal for the appellate court to direct payment of compensation without a sentence of imprisonment. That illegality has to be corrected by this court by awarding proper sentence following conviction of the petitioner. In the facts and circumstances of the case I am satisfied that sentence of imprisonment till rising of the court is sufficient in the ends of justice. There is no reason to interfere with the directions issued by the learned magistrate for payment of compensation and the default sentence. 5. Learned counsel for the petitioner requested that petitioner may be granted six months' time to deposit compensation since according to the learned counsel, petitioner is unable to raise the entire amount immediately on account of financial difficulties. Having regard to the amount involved and the circumstances stated by the learned counsel, I am inclined to grant the time to the petitioner till 26.1.2010. Crl.R.P. No. 2705 OF 2009 & Crl.R.C. No. 17 of 2009 : 5 : 6. I have dispensed with notice to Respondent No.2 in these proceedings in view of the order I proposed to pass which is not prejudiced to him. Resultantly, Criminal R.P No.2705 of 2009 is dismissed. Criminal R.C No.17/09 is allowed to the following extent. 1. Petitioner is sentenced to undergo simple imprisonment till rising of the court. 2. Petitioner is granted time till 26.1.2010 to deposit compensation in the Trail Court failing which, he has to undergo imprisonment as ordered by the learned magistrate. 3. It is directed that it will be sufficient compliance with the direction for deposit of compensation if petitioner paid compensation to respondent No. 2 through his counsel in the Trial court and, respondent No.2 filed a statement in that court through his counsel acknowledging receipt of compensation within the aforesaid time. Crl.R.P. No. 2705 OF 2009 & Crl.R.C. No. 17 of 2009 : 6 : 4. Petitioner shall appear in the trial Court on 28.2.2010 to receive the sentence. 5. Until then, execution of warrant if any against the petitioner will stand in abeyance. ( THOMAS P JOSEPH, JUDGE) jma