K.A.Abbas H.S.A vs Sabu Joseph & Anr

4) The factual matrix in brief is as under:- The facts in criminal revision petition No.1387 of 2006 may be noticed for the purpose of disposal of the appeals. The appellant (accused) and the respondent (complainant) are employed as High School assistants in SSHSS school in Moorkanand. The respondent has filed a complaint against the appellant before the learned Magistrate for an offence under Section 138 of the Negotiable Instruments Act (the `Act' for short). The complainant's case is that the appellant, who was due in a sum of Rs.5,00,000/-, issued a cheque dated 16.06.2003 in respect of that liability, and when the cheque was presented for encashment, the same was returned with an endorsement of "insufficiency of funds."

5) The complainant, through his Advocate, had issued notice to the appellant demanding the payment and that in spite of the service of notice, the appellant failed to pay the amount covered by the cheque and thus has committed an offence under Section 138 2 of the Act and, accordingly, has approached the learned Magistrate for appropriate reliefs.

6) The learned Magistrate after taking cognizance of the offence and after recording the evidence of the parties and after analyzing the same, has found the accused guilty of the offence punishable under Section 138 of the Act and sentenced to simple imprisonment for one year. In addition to that he had directed to pay a compensation of Rs. 5 lakhs to the complainant under Section 357(3) of the Cr.PC, and in default, to undergo simple imprisonment for a further period of two months.

7) The accused filed appeal before the Sessions Court, Manjeri being Criminal Appeal No. 59 of 2004. The Sessions Court while entertaining the appeal had directed the petitioner to deposit Rs. one lakh within one month being a part of the compensation amount. The appellant has complied with that order by depositing the amount as directed before the Judicial 1st Class Magistrate, Manjeri. Eventually, the Sessions Judge by his order dated 3 21.03.2006 confirmed the judgment of conviction and sentence passed by learned Magistrate.

8) The accused preferred revision petition being Criminal Revision Petition No. 1387 of 2006 before the High Court of Kerala at Ernakulam. The High Court passed an interim order directing the petitioner to deposit an amount of Rs. 1 lakh before the Judicial Magistrate and, accordingly, the said amount was also deposited. The High Court while disposing of the Revision Petition has observed that the courts below had appreciated the facts correctly and there is no error, illegality or impropriety in the finding recorded by the courts below to set aside the conviction and sentence. The High court has further stated that the only question which requires to be answered is, whether a proper sentence has been imposed on the accused by the courts below. The court after taking into consideration the peculiar facts and circumstances of the case has modified the sentence imposed on the accused to the extent, that, if the petitioner pays the compensation amount of Rs. 4 lakhs (keeping in mind that the petitioner had deposited an amount of Rs. 1 lakh before the trial court towards the compensation amount) within a period of five 4 months, then he needs to undergo imprisonment only till the rising of the court and if the petitioner commits default in making the payment aforesaid, he shall undergo simple imprisonment for three months by way of default sentence.

(2) If the fine is imposed in a case, which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal his elapsed, or if an, appeal be presented, before the decision of the appeal.

"421. Warrant for levy of fine.

(a) Issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender

33) The complainant in the Civil Appeal arising out of S.L.P.(Crl.) No.4099 of 2008 has contended that the sentence imposed for default in payment of the compensation amount is very minimal and, therefore, the sentence imposed by the High Court requires to be enhanced. In our considered view, looking into the facts and circumstances of the case and the nature of the offence, we find no good reason to interfere with the quantum of sentence imposed.

34) The contention of the accused as regards a factual error made by the High Court, wherein the High Court stated that the accused had deposited Rs. 1 lakh towards the compensation amount requires to be accepted. It is to be noted that the accused has already deposited Rs.2 lakhs towards the compensation amount of Rs. 5 lakhs, before the Judicial Magistrate in pursuance of orders passed by the Sessions Court and the High Court. Therefore, the appeal of the accused, i.e. Criminal Appeal arising out of Special Leave Petition (Crl.) No.334 of 2008 is allowed to the extent that he needs to pay a further amount of Rs. 3 lakhs towards the 2 compensation amount of Rs. 5 lakhs. The remaining part of the sentence passed by the High Court requires to be confirmed.

35) In the result, the conviction and sentence passed against the accused in Criminal Appeal arising out of S.L.P.(Crl.) No.334 of 2008 are confirmed with the modification, as observed in the earlier paragraph. Criminal Appeal arising out of S.L.P.(Crl.) No.334 of 2008 is, accordingly, partly allowed. Since, we are of the opinion that modification of the sentence is not warranted in the facts and circumstances of the case, Criminal Appeal arising out of Special Leave Petition (Crl.) No. 4099 of 2008 filed by the complainant is dismissed.