Jasitha Onden s/o Vijayan Onden v. Sreeharsha Kumar O.P. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939** **Crl.Rev.Pet.No. 645 of 2017 () -------------------------------** **CRL.A 265/2014 OF ADDITIONAL SESSIONS COURT-II KOZHIKODE. CC 462/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOZHIKODE. .........** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **JASITHA ONDEN S/O.VIJAYAN ONDEN,*OLIYANAM PARAMBATH, VENGALI.P.O, ELATHUR, CALICUT-673303.(CORRECTED) *THE ADDRESS OF THE PETITIONER IS CORRECTED AND SUBSTITUTED AS “LESLY, KARAPARAMBA, CALICUT-673 010” AS PER ORDER DATED 05-06-2017 IN CRL.M.A.2880/2017.** **BY ADVS.SRI.S.RENJITH SRI.S.UNNIKRISHNAN (NELLAD) RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------1. SREEHARSHA KUMAR O.P., AGED 28 YEARS, S/O.KUNHIKUTTAN VYDIAR, OLIYANAM PARAMBATH, VENGALI.P.O,ELATHUR,CALICUT-673303. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1 BY ADV.SRI.SHARAN SHAHIER R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.645 Of 2017 --------------------------------- Dated this the 30th day of June, 2017. ## O R D E R The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in C.C.No.462/2012 on the file of the Judicial First Class Magistrate Court-I, Kozhikode, instituted on the basis of a complaint filed by R-1 herein. The cheque amount in this case is Rs.25 lakhs. The trial court as per the impugned judgment rendered on 25.3.2014, had convicted the petitioner for the above said offence and sentenced her to undergo simple imprisonment for a period of two years and to pay a fine of Rs.33 lakhs and in default thereof to undergo simple imprisonment for six months and the fine amount realised was ordered to be paid to the complainant as compensation under Sec.357 (1) of the Cr.P.C. Aggrieved thereby, the petitioner has preferred Crl.A.No.265/2014 before the Sessions Court, Kozhikode. The appellate court concerned [Court of Additional Sessions Judge-II, Kozhikode], as per the impugned judgment dated 16.10.2015 had upheld the conviction and the substantive sentence of simple imprisonment for 2 ::2:: Crl.R.P.No.645 Of 2017 years was modified and reduced to imprisonment till the rising of the court and the fine amount was enhanced to Rs.34 lakhs and the default clause was also enhanced to simple imprisonment for 2 years. It is aggrieved by these verdicts, that the petitioner has preferred the instant Crl.R.P by taking recourse to the remedy under Sec.397 r/w Sec.401 of the Cr.P.C. 2. Heard Sri.S.Renjith, learned counsel for the petitioner, Sri.Sharan Shahier, learned counsel appearing for R-1 complainant and Sri.Jestin Mathew, learned Prosecutor appearing for R-2. 3. Sri.S.Renjith, learned counsel for the revision petitioner, submits that the petitioner has already suffered the impugned substantive sentence of imprisonment till the rising of the court and was also imprisoned for the default sentence clause and then released from jail in compliance with this Court’s interim order dated 5.6.2017. Further it is pointed by the petitioner that the petitioner has already directly paid an amount of Rs.3 lakhs to the 1[st] respondent complainant and this factual position is also confirmed by the learned counsel appearing for the complainant. Further it is submitted by the learned counsel for the petitioner on the basis of instructions from his party that the petitioner is not challenging the legality and conviction and would ::3:: Crl.R.P.No.645 Of 2017 only limit her prayer to grant her 10 months’ time to to pay the balance compensation amount of Rs.22 lakhs. It is also pointed out that this Court in the judgment dated 17.6.2016 in O.P(DRT).No.39/2016 (filed by the petitioner) had inter alia permitted the petitioner to go abroad and with the condition that she should come back India after 12 months and further that the passport seized by the Debt Recovery Tribunal (DRT) was returned back to the petitioner on November, 2016 in compliance with this Court’s judgment in the above said O.P(DRT). No.39/2016 and that the petitioner has been permitted to lawfully remain abroad until November, 2017. It is pointed out that the petitioner has now secured a job in the Gulf country and that this Court may clarify in supersession of this Court’s earlier order dated 5.6.2017 directing the petitioner to surrender her passport before the learned Magistrate and that she should be permitted to go abroad with the conditions in terms of this Court’s judgment dated 17.6.2016 in O.P (DRT).No.39/2016 whereby she has been permitted to go abroad with the condition to return by the end of November, 2017, etc. It is pointed out that unless the petitioner takes up her employment in the Gulf country she will not have any means to pay off the huge balance amount of Rs.22 lakhs and moreover she has already facing ::4:: Crl.R.P.No.645 Of 2017 proceedings before the DRT as stated above. It is also prayed by the petitioner-accused that the fine/compensation amount in this case may be reduced to Rs.25 lakhs, which is the cheque amount and that the modified default clause sentence of 2 years as ordered by the appellate court is ultra vires Sec.30 of the Cr.P.C and Sec.65 of the IPC, as it cannot exceed 6 months and may be reduced, etc. 4. Per contra, Sri.Sharan Shahier, learned counsel appearing for the 1[st] respondent-complainant, would submit that this Court may direct that the said issue regarding the return of the passport and permission to go abroad and come back to India within the above said time limit may be relegated to the consideration of the trial court where sentence execution proceedings are pending, etc. The imposition of default sentence clause of 2 years simple imprisonment in the event of non payment of fine imposed by the appellate court is illegal and it is ultra vires the provisions contained in Sec.30 of the Code of Criminal Procedure, 1973 and Sec.65 of the Indian Penal Code, 1860. This aspect has been so held by this Court in the decision in Anil Babu v. State of Kerala & anr. reported in 2017 (2) KHC 639 in paras 8 & 9, which read as follows: ::5:: Crl.R.P.No.645 Of 2017 '8. Sri.D.Kishore, learned counsel for the revision petitioner/accused submits that the said default sentence imposed by both the courts below that the accused should undergo simple imprisonment for the maximum period of simple imprisonment for 2 years on default to pay the compensation of Rs.2 lakhs is clearly ultra vires under proviso (b) to Sec.30(1) of the Cr.P.C. The learned Public Prosecutor was also asked to assist this Court on this issue. Both the learned counsel appearing for the revision petitioner/accused as well as the learned Public Prosecutor has pointed out before this Court that the maximum sentence that could be imposed on accused on conviction for the offence under Sec.138 is one that could be extended upto 2 years simple imprisonment. Sec.30 of the Cr.P.C. has also been brought to the notice of this Court which reads as follows: _“Sec.30:- Sentence of imprisonment in default of fine.-(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law_ ## _Provided that the term--_ - _(a) is not in excess of the powers of the Magistrate under section 29;_ - _(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine._ _(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 29.”_ 9. Accordingly it is submitted by the revision petitioner as well as by the prosecutor that since the maximum punishment that could have been imposed by the learned Magistrate for conviction for an offence under Sec.138 of the Negotiable Instruments Act is one that to the extend upto two years, the default sentence could not have exceeded ¼th of the said two years, which is 6 months. On consideration of the provisions contained under Sec.138 of the Negotiable Instruments Act as well as under Sec.30 of the Cr.P.C., this Court is of the view that the said submission made by the revision petitioner as well as by the prosecutor are correct. The trial court, appellate court and revisional court, while considering the question of sentence under Sec.138 of the Negotiable Instruments Act is also bound by the restriction imposed by Sec.30 of the Cr.P.C., more particularly, the one imposed by Clause (b) of proviso (2) Sub Section (I) of Sec.30 of the Cr.P.C. In that view of the matter this Court is of the considered opinion that the default sentence of 2 years imposed by the learned Magistrate and as affirmed by the appellate court is clearly illegal and ultravires and the same will stand set aside. Taking into account the various aspects of the matter, this Court is of the view that the default sentence clause could be limited to 3 months.” ::6:: Crl.R.P.No.645 Of 2017 Accordingly, the default sentence clause of 2 years imposed by the appellate court will stand set aside and will stand modified and reduced to 6 months' simple imprisonment. Further it is pointed by the counsel for the complainant that this Court may direct that atleast Rs.5 lakhs should be paid by the accused to the complainant before she is permitted by the trial court to travel abroad. Sri.S.Renjith, learned counsel for the petitioner, would submit that the petitioner would pay an additional amount of Rs.2 lakhs directly to the complainant before she travels abroad. In the light of this submission the following orders and directions are passed: - (i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the N.I.Act and the substantive sentence of imprisonment till the rising of the court are confirmed. However, in supersession of the orders passed by both the courts below, it is ordered that the petitioner should pay a total compensation amount of Rs.25 lakhs (which is the cheque amount), inclusive of the payment of Rs.3 lakhs already made. In default of such payment, the petitioner will have to suffer simple imprisonment for a period of 6 months. - (ii) The payment of the above said amount of Rs.3 lakhs by the accused to the complainant is recorded. The petitioner will pay an amount of Rs.2 lakhs within a week as a condition for the trial court to release her passport to enable her to go abroad and with a condition that she should come back to India by the end of November, 2017. Crl.R.P.No.645 Of 2017 ## ::7:: - (iii) In this regard, after paying Rs.2 lakhs to the complainant, the petitioner-accused will be at liberty to move appropriate application before the trial court for return of her passport and after hearing the complainant , in case the Magistrate is satisfied that the said payment of the additional amount of Rs.2 lakhs has already been received by the complainant, then the passport surrendered by the petitioner should be returned back by the trial court to the accused. It is made clear that the petitioner will have to return back to India by the end of November, 2017 in terms of the direction issued by this Court in the judgment dated 17.6.2016 in O.P(DRT).No.39/2016. Thereafter, if the petitioner wants to go abroad, she would seek necessary permission of the trial court and the said court will consider such request on merits, after hearing the complainant. - (iv) The balance compensation amount due should be paid by the accused to the complainant within an outer time limit of 10 months from 15.7.2017. Those amounts should be paid in various instalments and the outer time limit in that regard is only up to the above said period. - (v) The petitioner will personally appear before the trial court at 11:00 a.m. on 19.5.2018 to satisfy the said court about payment of total compensation amount directly to the complainant. On default of the petitioner to pay the above said amount she will have to undergo simple imprisonment for a period of 6 months. - (v) Until 19.5.2018, all coercive steps taken against the petitioner in execution of the impugned sentence will stand deferred. ## With these observations and directions the Crl.R.P stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/-