High Court Kerala High Court

V.Radha vs Premaja on 25 August, 2008

Kerala High Court
V.Radha vs Premaja on 25 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 194 of 2003()


1. V.RADHA W/O. VIJAYAN, RAYARETH HOUSE,
                      ...  Petitioner

                        Vs



1. PREMAJA W/O. BABU, P.O.NIDUPUZHA,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY PUBLIC

                For Petitioner  :SRI.P.M.PAREETH

                For Respondent  :SRI.DILIP J. AKKARA

The Hon'ble MR. Justice V.GIRI

 Dated :25/08/2008

 O R D E R
                             V. GIRI, J.
                   -------------------------------
                       CRRP.NO. 194/ 2003
                  ---------------------------------
         Dated this the 25th       day of August, 2008.

                               ORDER

The complainant in CC.No.548/1991 on the files of the

Judicial First Class Magistrate Court-I, Kannur is the petitioner

herein. The accused was prosecuted for an offence punishable

under section 138 of the Negotiable Instruments Act. The trial

court found her guilty under section 138 of the Negotiable

Instruments Act and convicted and sentenced her to pay a fine of

Rs.45,000/- with a direction that if the fine amount is paid, an

amount of Rs.44,000/- was paid over to the complainant under

section 357(3) of the Cr.P.C. The accused challenged the

conviction and sentence in Crl.Appeal No.140/97. The

appellate court confirmed the conviction. But while considering

the sentence the appellate court found that the learned

Magistrate had committed an illegality in imposing an excess fine

of Rs.45,000/- as it is in violation of the provisions of the Cr.P.C.

Accordingly, the sentence was modified and the fine amount

was reduced to Rs.5000/-. But thereafter the court directed that

CRMC.1969 /2005 2

an amount of Rs.4500/- be given to the complainant as

compensation from out of the fine amount, if realised under

section 357(3) of the Cr.P.C. Aggrieved by the modification of the

sentence, the complainant had preferred this revision.

2. Learned counsel for the petitioner Sri.P.M.Pareed refers

to the judgment of the Supreme Court in Suganthi Suruesh

Kumar vs. Jagadeeshan 2002(1) KLT 581) to contend for the

position that in directing payment of compensation under section

357 (3) of the Cr.P.C. the court should take note of the fact that

if the Magistrate orders to pay compensation to the complainant

from out of the fine realised, the complainant will be the loser

when the cheque amount exceeds the limit of Rs.5000/-. But in

such cases the Magistrate can alleviate the grievance of the

complainant by taking resort to the provisions of section 357(3)

of the Cr.P.C..

3. The appellate court in the present case took note of

section 357(3) of the Cr.P.C. But nevertheless directed that the

complainant shall be entitled to compensation under section 357

(1) (b) of the Cr.P.C. Though reduction of the fine amount from

Rs.45,000/- to 5000/- cannot be faulted with, taking note of the

CRMC.1969 /2005 3

fact that no substantive sentence of imprisonment was actually

imposed on the accused, it would have been appropriate in a case

involving an offence under section 138 of the Negotiable

Instruments Act for the appellate court to direct that

compensation be awarded under section 357(3) of the Code. But

this of course can be done only when the court imposes a

sentence of which fine does not form a part. From a reading of

the appellate judgment, I find that none of the relevant factors,

which have to be borne in mind by the court as outlined in the

judgment of the Supreme Court in Suganthi vs. Jagadeeshan

(2002(1) KLT 581 and the earlier judgment of the Supreme court

referred to therein have been kept in mind by the appellate

court.

4. In these circumstances, it is only appropriate for the

appellate court to reconsider the question of sentence.

Accordingly, Crl.RP is allowed in part and the judgment of the

appellate court in Crl.A.140/97 is set aside in so far as it relates

to the sentence alone. The case is remanded to the Additional

Sessions Judge, Thalassery for passing fresh orders as regards

the sentence to be imposed on the accused for the offence under

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section 138 of the Negotiable instruments Act. The parties shall

appear before the Sessions Judge on 13.10.2008. Though there

is appearance on behalf of the accused in this revision, I have not

been benefited by the submissions of the learned counsel for the

accused. If the learned Sessions Judge finds that there is no

appearance on behalf of the accused on 13.10.2008, then in the

interest of justice the court shall direct fresh summons to be

issued in that regard and then further proceed with the matter

as directed herein above.

V. GIRI, JUDGE.


Pmn/

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