IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1829 of 2009()
1. ANILKUMAR,S/O.ANANDAN,AGRICULTURAL
... Petitioner
Vs
1. ABDUL REHMAN,S/O.MUHAMMED,
... Respondent
2. STATE REPRESENTED BY PUBLIC PROSECUTOR,
For Petitioner :SRI.K.SHIBILI NAHA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.NO.1829 OF 2009
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Dated this the 12th day of June, 2009
ORDER
Public Prosecutor takes notice for respondent No.2. Notice
to respondent No.1 is dispensed with in view of the order I am
proposing to make which is not prejudicial to him.
2. Heard counsel for petitioner and Public Prosecutor.
3. This revision is in challenge of judgment of learned
Additional Sessions Judge (Adhoc -I), Manjeri in Criminal Appeal
No.18 of 2008. Case arose on a private complaint preferred by
respondent No.1 alleging that petitioner committed offence
punishable under Section 138 of the Negotiable Instruments Act
(for short, “the Act”). According to him, petitioner borrowed
Rs.2 = lakhs from him on 20.5.2005 and for the discharge of
that liability issued cheque, dated 14.8.2006. That cheque was
dishonoured for insufficiency of funds. Respondent No.1 issued
notice to the petitioner intimating dishonour and demanding
payment of the amount. Petitioner did not pay the amount in
spite of service of notice on him. Respondent No.1 gave
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evidence as PW1 and testified to his case. Case pleaded by
petitioner is that he had no transaction with respondent No.1.
He had some transaction with one Saidalavi to whom a blank
cheque was given. That blank cheque is misused, according to
him. Petitioner did not adduce any evidence in support of that
contention. Respondent No.1 when examined as PW1 testified
to his case. He claimed that petitioner borrowed the amount
from him on 20.5.2005 and for the discharge of that liability
issued Ext.P1, the cheque. He denied that he got the cheque
from the said Saidalavi. Courts below found in favour of due
execution of cheque for the discharge of legally enforceable
debt/liability. That finding is under challenge in this revision.
Learned counsel contended that due execution of the cheque is
not proved.
4. It is not disputed and proved by respondent No.1
that Ext.P1 contained the signature of petitioner and is drawn
on the account maintained by him. According to the
petitioner, he had given that cheque to Saidalavi from whom
respondent No.1 got it stealthily. But apart from merely
suggesting so to respondent No.1, petitioner did not take any
steps to prove or probabilise that contention. Even Saidalavi
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to whom petitioner is said to have handed over the cheque was
not cited as a witness. Nor did petitioner give a reply to
respondent No.1 on being served with notice of dishonour of
the cheque for Rs.2 = lakhs and demand to pay the said
amount. There is no reason to disbelieve the evidence of
respondent No.1. I do not find reason to interfere with the
concurrent finding entered by the courts below regarding
execution of the cheque, its dishonour for insufficiency of funds
and failure of petitioner to pay the amount in spite of
dishonour intimation and demand. Petitioner was not
successful in rebutting the presumption under Section 139 of
the Act. Hence conviction cannot be assailed.
5. Learned Chief Judicial magistrate sentenced
petitioner to undergo Simple Imprisonment for five months
and imposed cost of Rs.1,000/- with a default sentence for one
day. In appeal learned Additional Sessions Judge while
modifying the substantive sentence as Simple Imprisonment
till rising of the court directed the petitioner to pay Rs.2 =
lakhs under Section 357(3) of the Code of Criminal Procedure
(for short, “the Code”) as compensation and in default of
payment to undergo Simple Imprisonment for three months.
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Learned counsel contends that appellate court could not have
enhanced the sentence on an appeal preferred by the
convicted accused. It is also contended by learned counsel
that facts and circumstances did not justify awarding
compensation of Rs.2 = lakhs. It is also argued that appellate
court could not have enhanced th default sentence.
6. So far as substantive sentence is concerned,
appellate court took a lenient view and modified the same to
Simple Imprisonment till rising of the court. There is no
challenge to the reduction of the substantive sentence.
7. Learned Chief Judicial magistrate observed that this
is not a case where respondent No.1 has been put to loss by
any act of the petitioner in that, respondent No.1 could recover
the amount by filing a suit. As there is no loss, there is no
need for awarding compensation to respondent No.1 in the
opinion of learned Chief Judicial magistrate. Appellate court
invoking Section 357(4) of the Code directed payment of
compensation.
8. Time and again this Court has pointed out the
necessity to award compensation following conviction in cases
involving under Section 138 of the Act to compensate the loss
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caused to the payee or holder in due course as the case may
be. Those directions were issued taking into account the
object of legislation as well. Appellate court has observed
that the view taken by learned Chief Judicial magistrate that
respondent No.1 is not put to loss on account of dishonour of
the cheque is not correct. I do not find reason to interfere with
that finding of the appellate court in view of the object of
legislation and the decisions of this Court.
9. Then the question is whether appellate court could
have directed payment of compensation. Compensation
payable under Section 357(3) of the Code is not part of the
sentence. Section 357(3) is provided in the Code to
compensate the victims who suffered at the hands of offender
who has been found guilty. Therefore a direction for payment
of compensation cannot be treated on part with the sentence.
Section 357(4) of the Code specifically empowers the appellate
and revisional courts to award compensation. Hence
notwithstanding that learned Chief Judicial magistrate had
refused to award compensation, it was well within the power of
the appellate court to invoke Section 357(4) and award
compensation. The default sentence provided for non-
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payment of compensation cannot also treated as sentence
since providing such default sentence is only to enforce
payment of compensation.
10. Then the question is whether amount of
compensation awarded to respondent No.1 is excessive.
Ext.P1, cheque is dated 14.8.2006 and is for Rs.2 = lakhs.
Evidence of respondent No.1 which the Courts below accepted
is that petitioner borrowed Rs.2 = lakhs from him and for the
discharge of that liability issued the cheque. There is no case
for petitioner that at any time after 14.8.2006 he paid any
amount to respondent No.1. Appellate court disposed of the
appeal only on 31.3.2009, ie. almost three years after the
transaction and execution of the cheque. Hence the
compensation awarded, cannot be said to be excessive.
11. Learned counsel requested that petitioner may be
given four months’ time to deposit compensation as directed
by the appellate court. Considering the amount involved, I am
inclined to allow that request.
12. Resultantly, this revision fails. It is dismissed.
Petitioner is granted four months’ time from today to deposit
compensation in the trial court as ordered by the appellate
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court. In case of default, he shall undergo imprisonment as
ordered by the appellate court. 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 statement in the trial court through his
counsel acknowledging receipt of the compensation within the
aforesaid time.
Petitioner shall appear in the trial court on 14.10.2009 to
receive the sentence.
THOMAS P. JOSEPH, JUDGE
Acd
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