High Court of KeralaSingle Judge2011-06-03Revision petition allowed in part; conviction a...

Crl.Rev.Pet.No.49 of 2010 (arising from C.C. No.318/2006, JFCM Court, Kothamangalam)

Case / Petition Number:Crl.Rev.Pet.No.49 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.C. Hari Rani
Judgment Date: 2011-06-03
Court Decision / Holding: The revision petition is allowed in part. The conviction and the sentence under Section 138 NI Act are confirmed. The court modifies the sentence to give the first respondent three months to pay/deposit Rs. 1,00,000 as compensation (under Section 357(3) Cr.P.C.). In default, the accused shall undergo simple imprisonment for two months. The amount deposited, upon proper application, shall be released to the complainant. The Magistrate is directed to issue notices to the accused and his sureties to produce him for execution of the sentence till rising of the court.
Final Disposition: Revision petition allowed in part; conviction and main sentence confirmed; modification of payment schedule for compensation; default imprisonment provided for in case of non-payment.

Parties to the Case

Appellants / Petitioners

A.M. Poulose, S/o Mathew, Anthinattukudiyil House, Inchoor Kara, Kozhippilli P.O., Kothamangalam

Respondents

P. U. Joseph, S/o Ulahannan, Punnekottayil House, Kozhippilli P.O., Kothamangalam
State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M.G. Karthikeyan (Adv.)

Counsels for Respondents

• Sri. K.M. Kurian (Adv.) for R1
• Public Prosecutor Sri. Puzhakkara Muhammed

Case Synopsis & Summary

The Kerala High Court, through Judge M.C. Hari Rani, hears a criminal revision petition filed by the complainant against a conviction under Section 138 of the Negotiable Instruments Act and the sentence awarded by the Judicial First Class Magistrate, Kothamangalam. The trial court held the accused guilty under NI Act Section 138, convicting him under Section 255(2) Cr.P.C. and imposing imprisonment till rising of the court along with a compensation of Rs. 1,00,000 under Cr.P.C. 357(3). The revision petitioner challenges the sentence on the ground that no default sentence was awarded despite the compensation, and relies on Vijayan v. Sadanandan.K to argue that courts can add a default sentence when awarding compensation. The High Court, after hearing arguments, allows the revision petition in part. It confirms the conviction and the substantive sentence, but modifies the sentence to grant three months to pay the Rs. 1,00,000 compensation and, on default, to undergo simple imprisonment for two months. The court also directs that the amount, if deposited, be released to the complainant and directs the trial court to issue notices to secure the accused’s appearance for execution of the sentence. The decision reflects a discretionary balancing of ends of justice within the revisional power, while preserving the core conviction.

Provisions of Law Cited

Negotiable Instruments Act, 1881 – Section 138CrPC – Section 255(2)CrPC – Section 357(3)CrPC – Section 357(1)Probation of Offenders Act

Legal Doctrines & Maxims

Ends of justice
Power of revision of High Courts under Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the trial court ought to have awarded a default sentence along with the compensation under Section 357(3) Cr.P.C. Citing Vijayan v. Sadanandan.K (2009) 6 SCC 652, counsel argues that compensation under 357(3) Cr.P.C. can be accompanied by a default imprisonment; seeks modification to include such a default term.

Contentions of Respondents

The accused opposes adding any default imprisonment; asserts there was no default sentence ordered and relies on the statutory framework; contends that execution through default imprisonment is not warranted beyond the existing sentence and that enforcement should occur via execution procedures.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vijayan v. Sadanandan.K	[(2009) 6 SCC 652]	Mentioned Only	Cited by counsel to argue that default imprisonment can accompany compensation under 357(3) Cr.P.C.; court, however, did not adopt this proposition in its final order and instead modified the sentence in a different manner.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 Crl.Rev.Pet.No. 49 of 2010() ---------------------------CC.318/2006 of J.F.C.M COURT, KOTHAMANGALAM .................... REVN. PETITIONER/COMPLAINANT -------------------------------------- A.M.POULOSE, S/O.MATHEW, ANTHINATTUKUDIYIL HOUSE, INCHOOR KARA, KOZHIPPILLI P.O. KOTHAMANGALAM. BY ADV. SRI.M.G.KARTHIKEYAN ## RESPONDENTS/ACCUSED & STATE -------------------------------------- 1. P.U.JOSEPH, S/O.ULAHANNAN, PUNNEKOTTAYIL HOUSE, KOZHIPPILLI P.O. KOTHAMANGALAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.M.KURIAN FOR R1 PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **M.C.HARI RANI, J * * * * * * * * * * * *** Crl.R.P.No.49 of 2010 --------------------------------Dated this the 3[rd] day of June 2011 ## **O R D E R** The revision petitioner herein is the complainant in C.C.No.318/06 on the file of the Judicial First Class Magistrate Court, Kothamangalam who is challenging the sentence passed by the court below for the reason that no default sentence is awarded against the 1[st] respondent/accused who was found guilty for the offence under Section 138 of the Negotiable Instruments Act and also sentenced to undergo S.I till rising of the court and to pay compensation of Rs.1,00,000/- to the complainant u/s.357(3) Cr.P.C. As per the impugned judgment dated 21/11/2009, it was also ordered by the learned Magistrate that the compensation amount, if realised, shall be paid in full to the complainant as compensation under Section 357(1) Cr.P.C. The accused has not challenged the conviction and sentence passed against him, submitted by the learned counsel for the revision petitioner. 2. Heard the learned counsel for the revision petitioner/complainant and the learned Public Prosecutor. 2 Crl.R.P.No.49/10 3. The trial court, after considering the evidence adduced on the side of the complainant as PW1 and the documentary evidence of Exts.P1 to P10, found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act and the accused was convicted for the said offence under Section 255(2) Cr.P.C as stated in the judgment dated 21/11/2009. After considering the facts and circumstances of the case, it was found by the learned Magistrate that there was no reason to invoke the benevolent provisions of Probation of Offenders Act. The learned counsel relying on the decision reported in **Vijayan v. Sadanandan.K [(2009) 6 SCC 652]** submitted that while awarding compensation under Section 357 (3) Cr.P.C the court is within its jurisdiction to add a default sentence of imprisonment which was not ordered in the present case. So, it is prayed for re-consideration of the sentence by awarding default sentence also. 4. In the circumstances, to meet the ends of justice in the present case and by exercising the power of revision I am inclined to modify the sentence to the extent of granting three months time to the 1[st] respondent/accused to pay/deposit the Crl.R.P.No.49/10 3 compensation amount of Rs.1,00,000/- as ordered by the trial court and in default to undergo simple imprisonment for two months. 5. In the result, a) This revision petition is allowed in part. b) The impugned concurrent verdict of guilty and conviction of the first respondent/accused under Section 138 of the Negotiable Instruments Act is confirmed. c) The sentence imposed on the 1[st] respondent/accused to undergo S.I till rising of the court and to pay a compensation of Rs.1,00,000/- to the complainant under Section 357(3) Cr.P.C is also confirmed. (d) The 1[st] respondent/accused is directed to pay/deposit the compensation amount of Rs.1,00,000/- within a period of three months from today and in default to undergo S.I for two months. The amount if deposited shall be released to the revision petitioner/complainant on proper application. The learned Magistrate is directed to issue notice for appearance of the 1[st] respondent/accused and also to his sureties to produce the 1[st] respondent/accused for execution of the sentence of Crl.R.P.No.49/10 4 imprisonment till rising of court imposed on the 1[st] respondent/accused before issuance of warrant against him. **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge Crl.R.P.No.49/10 5 Crl.R.P.No.49/10 6 Crl.R.P.No.49/10 7 **M.C.HARI RANI, J** Crl.R.P.No.504 of 2001 ORDER 17[th] DAY OF JUNE 2001 Crl.R.P.No.49/10 8 Crl.R.P.No.49/10 9