Abdul Nazar v. Sivarman and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 23RD DAY OF JANUARY 2018 / 3RD MAGHA, 1939 Crl.MC.No. 4734 of 2014 CRRP 23/2011 of D.C & SESSIONS COURT, PALAKKAD ST 3153/1994 of J.M.F.C.,CHITTUR ## PETITIONER(S)/PETITIONER/ACCUSED ABDUL NAZAR S/O.ABDUL RAHIMAN, AGED 54 YEARS, KUNNATH HOUSE, PATTAMBI, PALLIPURAM AMSOM, KIZHAYUR, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV.SRI.P.K.MOHANAN(PALAKKAD) ## RESPONDENTS/COMPLAINANT AND STATE: 1. SIVARAMAN, AGED 54 YEARS S/O.KUNJANDI, M.K.KALATHIL, PUTHUNAGARAM, CHITTUR TALUK, PALAKKAD DISTRICT-678101. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. R2 BY PUBLIC PROSECUTOR, SHRI E C BINEESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 4734 of 2014 () APPENDIX ## PETITIONER(S)' EXHIBITS ANNEXURE 1 : COPY OF THE JUDGMENT DT.23-1-1996 IN ST 3153/94 ON THE FILE OF JFCM COURT CHITTUR. ANNEXURE 2 : COPY OF JUDGMENT DT.20-6-2001 IN CRA 32/96 ON THE FILE OF THE COURT OF SESSIONS JUDGE, PALAKKAD. ANNEXURE 3 : COPY OF ORDER DT.3-12-2008 IN CRRP 1490/2001 OF THE HONOURABLE HIGH COURT OF KERALA. ANNEXURE 4 : COPY OF ORDER DT.28-2-2009 IN ST CASE 3153/1994 OF JFCM, CHITTUR. ANNEXURE 5 : COPY OF ORDER DT.7-7-2014 IN CRRP 23/2011 OF SESSIONS COURT, PALAKKAD DIVISION. ## RESPONDENTS EXHIBITS: NIL // True copy // PA to Judge ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.M.C. No.4734 of 2014 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd ] day of January 2018 ## O R D E R The petitioner was convicted by the courts below under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act') and sentenced thereunder to pay a fine of Rs.30,000/- and in default to simple imprisonment for three months by the trial court as per judgment dated 23.1.1996 in S.T. No.3153 of 1994. The trial court further directed that out of the fine amount, an amount of Rs.20,000/- to be given to PW1 as compensation under Section 357 Cr.P.C. 2. Against the said conviction and sentence, the 2 Crl.MC 4734/14 revision petitioner filed appeal. As per judgment in Crl.Appeal No.32 of 1996, the appellate court confirmed the conviction and modified the sentence to a fine of Rs.5,000/- with a default clause for simple imprisonment for two months. The appellate court also directed that a compensation of Rs.20,000/- to be paid to the complainant under Section 357(3) Cr.P.C. 3. This court, as per order dated 3.12.2008 in Crl.R.P. No.1490 of 2001 confirmed the conviction and set aside the sentence. The case was remanded to the trial court by this court for awarding the sentence afresh, in accordance with law. 4. Thereafter, the trial court sentenced the revision petitioner to imprisonment till the rising of the court and a compensation of Rs.45,000/- to the complainant under 3 Crl.MC 4734/14 Section 357(3) Cr.P.C. with a default clause for simple imprisonment for three months. Against the said sentence, the revision petitioner filed revision petition before the Sessions Court. The Sessions Court, as per order in Crl.R.P. No.23 of 2011, confirmed the sentence awarded by the trial court. Aggrieved by the said sentence awarded by the courts below, this Crl.M.C. has been filed. 5. Service is complete. However, there is no appearance for the first respondent. 6. Heard. 7. The learned counsel for the petitioner has submitted that the remand of the case for awarding the sentence was not legal and in the said circumstances, the learned Magistrate ought not have awarded any sentence against the petitioner. A Division Bench of this Court in 4 Crl.MC 4734/14 Ishaque v. Raveendran Thampan [2010(2) KLT 1], held that the appellate court can remand the matter for awarding the sentence after confirming the conviction. That apart, a learned Single Judge of this court as per Annexure-3 order in Crl.R.P. No.1490 of 2001, set aside the sentence and remitted the case to the trial court for awarding the sentence, in accordance with law. The said order was not challenged by the revision petitioner. Therefore, the said order has become final and conclusive. In the said circumstances, the learned Magistrate was perfectly justified in awarding the sentence as directed by this court. 8. The courts below awarded imprisonment till the rising of the court and a compensation of Rs.45,000/-. The cheque amount is Rs.15,000/-. The maximum sentence which can be awarded under Section 138 of the N.I. Act is 5 Crl.MC 4734/14 imprisonment for two years and a fine up to double the cheque amount. In this case, the compensation is three times the cheque amount. Therefore, the sentence awarded by the courts below cannot be correct to that extent. 9. Considering the facts and circumstances of the case, including the amount covered by Ext.P1 cheque, I am of the view that the sentence awarded by the courts below can be modified and reduced to a fine of Rs.15,000/(Rupees fifteen thousand only) and in default to simple imprisonment for 15 days, to meet the ends of justice. It is ordered accordingly. If the fine amount is realised, the entire amount shall be given to the complainant as compensation under Section 357(1)(b) Cr.P.C. Needless to state that if the revision petitioner had already deposited any amount before the trial court, 6 Crl.MC 4734/14 pursuant to the direction of this court or the lower appellate court, the said amount will be treated as part payment of the fine directed in this order. I make it clear that if the revision petitioner had deposited any amount before the trial court in excess of the fine directed in this order, the revision petitioner is entitled to reimbursement of the excess amount from the trial court. Sd//- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/24.1.2018_