IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 Crl.Rev.Pet.No. 2448 of 2009() ------------------------------ CRA.88/2008 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.848/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------- E.P.KUNHIMOIDU, S/O.CHEKKUTTY (WRONGLY SHOWN AS K.P.KUNHIMOIDU IN THE LOWER COURT ORDER), EDAKKULATH PUTHAN PURAKKAL (H), TIRUNNAVAYA P.O., TIRUR. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.M.F.MOHAMMOD SIYAD SMT.ACHU SUBHA ABRAHAM SMT.SUJA MATHEW RESPONDENTS/RESPONDENTS/ STATE AND COMPLAINANT: ----------------------------------- 1. T.KESAVAN, S/O.VELAYUDHAN, THADATHIL HOUSE, TRIKKUNNAPURAM P.O., KUTTIPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2448 of 2009 --------------------------------------- Dated this 04th day of August 2009 ORDER Notice to respondent No.1 is dispensed with in view of the order I propose to pass in this revision which is not prejudicial to him. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track No-3, Manjeri in criminal appeal No.88 of 2008 confirming conviction of petitioner but modifying the sentence. Petitioner faced trial in the court of Judicial First Class Magistrate, Tirur in C.C.No.848 of 2004 for offence punishable under section 138 of the Negotiable Instruments Act on the complaint preferred by respondent No.1. According to respondent No.1, petitioner owed Rs.300000/- to him and for discharge of that liability issued Ext.P1, cheque dated 10-08-2004 for the said amount. That cheque was dishonoured for insufficiency of funds is proved by Exts.P2 and P3. Service of statutory notice on petitioner as proved by Exts.P4 to P6. Respondent No.1 gave evidence as PW1 and testified to his case. Contention raised by petitioner in Ext.P7, reply is that petitioner and one Baiju are friends, Baiju collected the cheque from petitioner and gave the same to respondent No.1 with whom Baiju had some business transactions. When respondent No.1 was in the box it was suggested to him that Baiju had subscribed to a kuri run by Merchants Association of which respondent No.1 is a member of the executive Crl.R.P.No.2448 of 2009 2 committee, Baiju prized the kuri and received the amount and the cheque was given to the Merchants Association as security. Respondent No.1 denied that suggestion. In the course of the trial, petitioner moved an application to sent the cheque for expert opinion. Learned magistrate was not impressed by that application. That application ended in dismissal. It is contended by learned counsel that concurrent finding regarding execution is not correct. 3. It is true that petitioner had moved an application to send Ext.P1, cheque for expert opinion. But in Ext.P7, reply sent by petitioner there was no denial of the signature in Ext.P1. Moreover learned magistrate has also noted that the request was to sent Ext.P1 along with Vakkalath, acknowledgment card and bail bond signed by petitioner in the trial court. Learned magistrate observed that no attempt was made by petitioner to produce his admitted signatures prior to the service of notice for comparison with the disputed signature in Ext.P1. It is be noted that the drawee bank had not dishonoured the cheque for reason of any dissimilarity with the signature in the specimen signature card. In these circumstances, learned magistrate is justified in not sending the signature for expert opinion. For due execution of the cheque there is the evidence of respondent No.1. There is no evidence to show that the cheque was given to Merchants Association or Baiju as the case may be, into the Crl.R.P.No.2448 of 2009 3 circumstances pleaded by petitioner. It is difficult to believe that the cheque given to the Merchants Association was stealthily taken by respondent No.1 who is said to be a member of executive committee of that Association and misused the same. The suggestions in this regard are denied by respondent No.1. In the evidence and circumstances of the case courts below are justified in holding in favour of due execution of the cheque. 4. Learned magistrate imposed simple imprisonment for one month on petitioner. There was also a direction for payment of compensation of Rs. Three lakhs to respondent No.1 but no default sentence was provided. Appellate court while modifying the substantive sentence as simple imprisonment for six months was of the view that section 357(3) of the Code of Criminal Procedure has no application since respondent No.1 had not suffered loss as he had the remedy of recovery of the amount covered by the cheque by civil proceeding and that even if the civil remedy is lost by the law of limitation, that is the fault of respondent No.1. This court has held repeatedly that normally a conviction for the offence under section 138 of the Act should be followed by a direction for payment of compensation in accordance with the object of legislation. Courts below found that respondent No.1 had advanced Rs.three lakhs to the petitioner, for repayment of that amount petitioner issued the cheque Crl.R.P.No.2448 of 2009 4 and that cheque was dishonoured for insufficiency of funds. I am at a loss to understand how it could be said that respondent No.1 has not suffered loss. That he may have other remedies for recovery of the amount does not mean that he has not suffered loss at the hands of petitioner. Respondent No.1 is entitled to get compensation. Revisional court is also entitled to award compensation in view of section 357(4) of the Code. Considering the facts and circumstances of the case I am inclined to think that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same trial petitioner has to pay compensation to respondent No.1 which as learned magistrate also found, is fixed as Rs. Three lakhs on the facts and circumstances of the case. 2. Learned counsel requested that petitioner may be granted six months' time to deposit the compensation. Learned counsel says that petitioner is not able to raise the entire amount immediately. Having regard to the facts and circumstances of the case I am inclined to grant time till 30-12-2009 for deposit/payment of compensation but, in case of non compliance petitioner has to undergo simple imprisonment for six months. Resultantly this revision petition is allowed in part to the following extent: 1. Substantive sentence awarded to the petitioner is modified as simple Crl.R.P.No.2448 of 2009 5 imprisonment till rising of the court. 2. Petitioner is directed to deposit in the trial court Rs.3,00,000/- (Rupees Three Lakhs) for payment to respondent No.1 by way of compensation under section 357(3) of the Code of Criminal Procedure on or before 30-12-2009 failing which petitioner has to undergo simple imprisonment for six months. 3. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid 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 compensation within the period aforesaid. Petitioner shall appear in the trial court on 31-12-2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P JOSEPH, JUDGE Sbna/