D. Radhakrishna Panicker v. S. Saraswathi Amma and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **FRIDAY, THE 14TH DAY OF JULY 2017/23RD ASHADHA, 1939** ## **Crl.Rev.Pet.No. 691 of 2002 ( )** **-------------------------------CRL.A.NO. 167/2001 OF ADDL.SESSIONS COURT, ALAPPUZHA CC.NO. 1121/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, CHERTHALA** **---------------------** ## **PETITIONER/APPELLANT/ACCUSED:** **-----------------------------------------------------** **D. RADHAKRISHNA PANICKER, IDAVANA NIKARTHIL HOUSE, MARUTHOOR VATTOM P.O., CHERTHALA.** ## **BY ADV. SRI.C.S.MANU** ## **RESPONDENT(S)/RESPONDSENTS/COMPLAINANT & STATE:** **--------------------------------------------------------------------------------------** **1. S. SARASWATHI AMMA, BHAVANI SADANAM, WARD NO.5, CHERTHALA MUNICIPALITY, CHERTHALA.** ## **2. STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.Rev.Pet.No. 691 of 2002 ( )** ## **APPENDIX** **PETITIONER'S ANNEXURES:** **ANNEXURE A1 COPY OF THE MEDICAL CERTIFICATE DATED 10/8/2002 ISSUED BY THE ABOVE SAID DOCTOR.** **RESPONDENT'S ANNEXURES: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ALEXANDER THOMAS, J. ================== Crl.R.P.No. 691 of 2002 ================== Dated this the 14[th] day of July, 2017 O R D E R The petitioner is the accused for offence punishable under Sec.138 of the Negotiable Instruments Act in C.C.No.1121/1996 on the file of the Judicial First Class Magistrate's Court-I, Cherthala, instituted on the basis of the complaint filed by the 1[st] respondent herein. The amount covered by Ext.P-1 dishonoured cheque dated 3.6.2000 is Rs. 85,000/-. The trial court as per the impugned judgment rendered on 4.5.2001 had convicted the petitioner for the abovesaid offence and has sentenced him to undergo simple imprisonment for a period of 3 months. Aggrieved thereby, the petitioner had filed Crl.Appeal No.167/2001 before the appellate sessions Court concerned (Court of Addl. Sessions Judge, Alappuzha). The complainant had also preferred Crl.R.P.No.51/ 2001 to impugn the said judgment of the trial court to the extent it did not contain a provision for disbursing compensation to the complainant. Both the Crl.Appeal No.167/2001 filed by the accused and Crl.R.P No. 51/2001 filed by the complainant before the said Sessions Court were jointly disposed of by the abovesaid appellate sessions judge by a common judgment dated 23.5.2002, as per which the Sessions Court confirmed the conviction and substantive sentence of simple Crl.R.P.691/2002 - : 2 :- imprisonment for 3 months. However, the Sessions Court has also ordered that the accused will pay compensation of Rs.1.1 lakhs to the complainant in terms of Sec.357(3) of the Cr.P.C. It is aggrieved by the abovesaid concurrent verdicts of both courts below, that the petitioner has preferred the instant revision petition by taking recourse to the remedies conferred under Sec. 397 read with Sec. 401 of the Cr.P.C. 2. The Criminal Revision Petition was admitted by this Court on 21.6.2002. This Court had also passed interim order dated 21.6.2002 on Criminal Miscellaneous Petition No.4153/2002 in this revision directing that the execution of the impugned sentence shall be suspended on the petitioner executing bond for Rs.20,000/- with 2 solvent sureties for the like sum to the satisfaction of the trial court and further on the petitioner depositing one half of the cheque amount of Rs.85,000/- within one month therefrom. Later this Court as per order dated 24.7.2002 on Crl.M.P. No.5069/2002 had extended the time for depositing the abovesaid amount by two weeks. Still further, this Court had also passed order dated 30.5.2003 in Crl.M.P.No.5108/2003 extending the time for depositing of the above amount till 10.6.2003. 3. Notice issued to R-1 (complainant) was returned stating that “not known” and service was not complete. Till date the petitioner has not taken any steps to complete service of notice on R-1. 4. On 16.1.2013 it was reported by the learned counsel Crl.R.P.691/2002 - : 3 :- who appeared for the petitioner that the petitioner had taken away the case files from him and, that therefore, the counsel is not in a position to argue the matter and this Court had then directed the Registry to call for a report from the trial court to ascertain whether the revision petitioner (accused) has undergone sentence as per he impugned judgment and if not, whether coercive steps have been taken against petitioner, etc. Accordingly, in compliance with the said order dated 16.1.2013 passed by this Court, the trial court concerned (Judicial First Class Magistrate's Court-I, Cherthala) had submitted report dated 31.1.2013 to the Registry of this Court, wherein it is stated that pursuant to the earlier interim order dated 21.6.2002 passed by this Court suspending the sentence, the petitioner had executed bond with solvent sureties for the requisite sum and he had deposited the amount of Rs. 42,500/- (half the cheque amount of Rs. 85,000/-) within the extended time limit of 10.6.2003 granted by this Court. Further it is stated in the said report since the accused had complied with the condition imposed by this Court, no coercive steps have been taken against him. Later the LCRs were received by the Registry of this Court on 19.2. 2013. On 31.7.2015 it was again reported by the counsel for the petitioner that the counsel has relinquished vakalath and handed over the entire case files to the party and this Court had adjourned the matter for 2 weeks to enable the petitioner to make alternate arrangements. Till date, the petitioner has Crl.R.P.691/2002 - : 4 :- not cared to enter appearance before this Court or to even take steps to serve notice on R-1 in the correct address. 5. The case was again listed on 12.7.2017 for curing the defect and no steps whatsoever have been taken by the petitioner to cure the defect of effecting proper service of notice on R-1 (complainant). Today also the previous counsel appearing for the petitioner has reported that he has relinquished vakalath and that the entire case records were taken back by the petitioner long back. 6. According to the information available to this Court, the petitioner had voluntarily taken back the case files from his previous counsel and he has never bothered to make alternate arrangements till date. He has not even cared to take steps for service of notice on R-1. Therefore, the petitioner cannot be afforded any further opportunity by this Court for issuing further notice from this Court to call upon him to defend himself. The petitioner knew very well that the case is pending and that he has taken away the case bundle and it is for him to prosecute the matter diligently and properly. The action of the petitioner in not even curing the defect so as effect proper service of notice on R-1 is nothing short of scandalous abuse of the process of the court. No litigant can be permitted the luxury of taking things for granted in such a casual manner. The learned Prosecutor has submitted before this Court that since the revision petition has already been admitted, it would be Crl.R.P.691/2002 - : 5 :- only appropriate in the fitness of things that this Court dispose of the revision on merits, on the basis of the materials on record. The learned Prosecutor was also gracious enough to assist this Court in the matter, even though the State is only a formal party. 7. The gist of the allegation in the complaint is that towards discharge of the liability of Rs.85,000/- owed by the accused to the complainant, the revision petitioner (accused) had issued Ext.P-1 cheque dated 3.6.2000 for Rs. 85,000/- drawn from the account of the accused and payable in favour of the complainant and that the cheque when presented by the complainant, resulted in dishonour as per Ext.P-2 and P-3 memos and thereupon the complainant had issued Ext.P-4 statutory demand notice calling upon the accused to pay off the amount covered by the dishonoured cheque within 15 days from the date of receipt of the said notice. The said notice sent by registered post was received by the petitioner as evident from Exts.P-5 and P-6. Since the accused did not pay the amount covered by the cheque, the complainant has instituted the present complaint after following the statutory formalities, which led to the conduct of the trial. 8. During the trial, the complainant has examined P.Ws-1 to 3 and has marked Exts.P-1 to P-7 documents. Ext.P-7 is the extract of the accounts of the particulars relating to the transactions in question, which led to the issuance of the cheque. Crl.R.P.691/2002 - : 6 :- 9. The courts below after carefully evaluating the oral and documentary evidence adduced, have concurrently come to the considered conclusion that the revision petitioner (accused) has executed Ext.P-1 cheque as contemplated under Sec.138 of the Negotiable Instruments Act. The defence set up by the revision petitioner was also repelled by the courts below. Since there are concurrent findings of facts regarding the conviction of the petitioner, this Court sitting in revision cannot interfere with the same unless the said findings are perverse or illegal. No circumstances are brought out to indicate that the said concurrent findings entered by the courts below are in any manner perverse or illegal. In the circumstances, the concurrent findings rendered by both the courts below regarding the conviction of the petitioner for the offence under Sec.138 of the Negotiable Instruments Act do not warrant any interference at the hands of this revisional court. 10. As regards the the sentence, the trial court has imposed only substantive sentence of simple imprisonment for 3 months. The Sessions Court through the common disposal of the appeal filed by the accused and the revision petition filed by the complainant, has confirmed the conviction as well as the substantive sentence of simple imprisonment for 3 months, but has also ordered that the accused should pay compensation of Rs.1,10,000/- in respect of the dishonour of the cheque for Rs.85,000/-. The Apex Court has held in various decisions Crl.R.P.691/2002 - : 7 :- that the offence of dishonour of cheque created by Sec.138 of the Negotiable Instruments Act is essentially a civil wrong, which had been given criminal overtones by the legislative intervention in the enactment of Sec.138 of the Negotiable Instruments Act and that such an offence cannot be equated with offences under the Indian Penal Code. It has also been held that payment of fine amount to be disbursed as compensation in respect of the dishonoured cheque to the complainant would be sufficient to meet the ends of justice. The Apex Court that has held that in the case of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect (see Damodar S.Prabhu v. Sayed Babalal reported in AIR 2010 SCC 1907, Kaushalya Devi v. Roopkishore reported in AIR 2011 SC 2566, etc.). The trial court has reported to the Registry of this Court on 30.1.2013 that the accused has complied with the requisite conditions for suspending the sentence and that he has deposited half the cheque amount on 6.6.2003, etc. and that the sentence has not been executed. Thereafter, the court below has transmitted the LCR to the Registry of this Court on 19.2.2013. In the light of all these aspects, this Court is of the view that the substantive sentence of 3 months' simple imprisonment could be modified and reduced as imprisonment till rising of the court. However, to give this advantage to the accused, it will be necessary to ensure that adequate justice is done to the complainant as well. Crl.R.P.691/2002 - : 8 :- ## 11. Accordingly, in modification of the order passed by the appellate Sessions Court, it is ordered that:- The petitioner will pay compensation of Rs.1,70,000/- (Rupees one lakh seventy thousand only), which shall be disbursed to the complainant in terms of Sec.357(3) of the Cr.P.C. The amount of Rs.42,500/- already deposited by the accused before the trial court on 6.6.2003 should be forthwith released by the trial court to the complainant without any further delay. The petitioner is given 3 months time from 15.7.2017 to remit the balance amount of Rs. 1,27,500/(viz.,Rs. 1,70,000 - Rs.42,500/-). The petitioner will appear before the trial court at 11 a.m. on 21.10.2017 to receive the sentence of imprisonment till rising of the court and and to remit the balance compensation amount of Rs.1,27,500/-. On default of the petitioner to pay the said amount, he will have to suffer simple imprisonment for a period of 2 months. Until 21.10.2017 all further coercive steps taken against the petitioner in pursuance of the execution of the impugned sentence in this case will stand deferred. On default of the petitioner either to appear before the trial court on 21.10.2017 or on default to pay the abovesaid amount, then the trial court will be at liberty to proceed against the petitioner, in accordance with law. 12. The Registry will forward LCR with a copy of this order to the trial court. The Registry will also forward a copy of this order to the petitioner and to R-1 by registered speed post. With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.R.P.691/2002 - : 9 :- ## ALEXANDER THOMAS, J. ================== Crl.R.P.No. 691 of 2002 ================== O R D E R 14[th] July, 2017