Jayakrishnan Nair v. State of Kerala and Shyma Kumari

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 Crl.Rev.Pet.No. 25 of 2006() ---------------------------- CRL.A.NO.479/00 OF THE ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-I, THIRUVANANTHAPURAM. C.C.NO.559/98 OF THE JFCM COURT-V, THIRUVANANTHAPURAM. REVN. PETITIONER(S): APPELLANT/ACCUSED. --------------------------------------- JAYAKRISHNAN NAIR, AGED 37 YEARS, S/O.KRISHNAN NAIR, T.C.16/1809, DARSHINI, KSHETHRA KOCHAR ROAD, JAGATHY, THIRUVANANTHAPURAM. BY ADV. SRI.S.KRISHNAMOORTHY RESPONDENT(S): COMPLAINANT. --------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHYMA KUMARI, D/O.ANTHAKRISHANAN NAIR, HANUMANTHA VILASAM,NEDUMOM, KALLAYAM P.O. THIRUVANANTHAPURAM. BY P.P. SRI.C.M. KAMAPPU. ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** **------------------------------------------------Crl.R.P.No.25 of 2006 ------------------------------------------------Dated this the 27[th] day of March 2009** ## **ORDER** This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sec.138 of the Negotiable Instruments Act. The petitioner/accused has been found guilty, convicted and sentenced to undergo simple imprisonment for a period of one month. There is a further direction to him to pay an amount of Rs.50,000/- as compensation to P.W.1 under Sec.357(3) of the Cr.P.C. No default sentence is seen imposed. 2. The complainant and the accused were spouses. There was acrimony in their relationship and an application for divorce had been filed. That proceedings was settled and compromised as per Ext.P1 joint compromise petition. The husband's application for divorce was allowed on consent. It **Crl.R.P.No.25 of 2006** -: 2 :- was agreed that in full settlement of the claims of the wife, an amount of Rs.50,000/- shall be paid and towards that, the cheque in question was issued. It was specifically undertaken that the cheque can be presented on 30/6/08 and that funds shall be made available by that date for honouring the cheque. 3. The wife/complainant presented the cheque. The same was returned dishonoured. Notice of demand was issued. It was duly received and acknowledged; but it evoked no response. The claimant came to court after observing the statutory time table scrupulously. Cognizance was taken. Accused appeared before the court. He denied the offence alleged against him and thereupon the complainant examined herself as P.W.1 and proved Exts.P1 to P4. The accused, in the course of trial, did not dispute that the cheque was issued in pursuance of Ext.P1 compromise petition; but took up a contention that the complainant had committed default in performing condition No.3 of Ext.P1 compromise petition. There was hence failure of consideration, it was contended. Consequently, it was urged that the cheque cannot be held to be issued for the due discharge of any legally enforcible debt/liability. 4. On the side of the accused, Exts.D1 and D2 were marked. Ext.D1 is the order passed by the criminal court in a **Crl.R.P.No.25 of 2006** -: 3 :- prosecution under Sec.498A read with Sec.34 IPC whereunder the accused persons therein i.e., the accused herein and his relatives were discharged on the ground that the complainant (the complainant herein) had settled the matter and has not adduced any evidence against the said accused. Ext.D2 is the deposition of the complainant in Ext.P1 proceedings wherein she had also reported that as the matter had been settled already, divorce as prayed for by the husband can be granted. 5. The courts below concurrently came to the conclusion that Ext.P2 cheque has been issued by the accused to the complainant for the due discharge of a legally enforcible debt/ liability. All ingredients of the offence under Sec.138 of the N.I. Act were proved, it was held. Accordingly, the courts below proceeded to find the petitioner/accused guilty of the offence under Sec.138 of the N.I. Act alleged against him. He was sentenced to undergo simple imprisonment for a period of one month. He was further directed to pay the actual cheque amount of Rs.50,000/- as compensation. No default sentence was imposed. 6. Before me, the learned counsel for the petitioner/accused and respondents herein have advanced their arguments. The learned counsel for the petitioner/accused **Crl.R.P.No.25 of 2006** -: 4 :- assails the impugned order on four grounds. Firstly, it is contended that the cheque is not issued for the due discharge of any legally enforcible debt/liability. Secondly, it is contended that there has, at any rate, been failure of the consideration referred to in Ext.P1. Thirdly, it is contended that, at any rate, the option available to the complainant is to get the decree passed in the divorce petition executed. Fourthly and lastly, it is contended that the sentence imposed is excessive. 7. I have considered all the relevant inputs. A reading of Ext.P1 eloquently declares that the cheque was issued in consideration of the wife giving up all her claims. There can be no semblance of doubt on this aspect on a careful reading of Ext.P1 compromise petition. The language used in Ext.P1 clearly shows that the amount of Rs.50,000/- is paid by cheque in settlement of all the claims of the complainant. It is idle for the petitioner, who accepts Ext.P1 and has obtained an order of divorce on the strength of Ext.P1, to now contend that the cheque - Ext.P1 was issued not for the due discharge of any legally enforcible debt/ liability. 8. The second contention is about the failure to comply with the terms of Ext.P1. At the outset, it must be noted that condition No.1 in Ext.P1 speaks of issue of the cheque in **Crl.R.P.No.25 of 2006** -: 5 :- settlement of all the claims of the complainant and there is no stipulation that the right to encash the cheque is dependent on compliance with any other conditions. Even assuming that the said condition No.3 was a condition precedent for encashment of the cheque, Ext.D1 order makes it crystal clear that the prosecution initiated by the complainant was brought to termination only on the basis of her own voluntary conduct of not appearing before the court and not adducing any evidence against the accused herein. It was a prosecution under Sec.498A IPC. The complainant herein was the complainant in that case also. There was no method known to law by which she could withdraw it. The offence is non-compoundable also. In these circumstances, the only way in which such prosecution under Sec.498A IPC against the petitioner herein can be brought to termination by consent of parties was not to prosecute that case and not adduce any evidence in that case. The complainant remained absent. The petitioner reported to the court that the matter has already been settled. The complainant did not adduce any evidence. It can thus be seen that there is virtual and substantial compliance with condition No.3 in Ext.P1 even assuming that the said condition was a condition precedent to the right of the complainant to encash the said cheque. **Crl.R.P.No.25 of 2006** -: 6 :- 9. Less said about the third contention, the better. The argument is that since right to receive the amount of Rs.50,000/is on the basis of the compromise decree, the said decree can be enforced and the amounts claimed. This prosecution is not specifically for claiming any amount. This prosecution is on the basis of the alleged culpable conduct of the petitioner herein who has violated the provisions of Sec.138 of the N.I. Act. The mere fact that the complainant, if she so chooses, has other methods of recovery of the amount due under the civil process cannot, at any rate, be a valid defence in a prosecution under Sec.138 of the N.I. Act. 10. The last contention is that the sentence is excessive. The courts below have imposed only a sentence of simple imprisonment for a period of one month. There is also a toothless direction to pay an amount of Rs.50,000/- as compensation. The complainant has been waiting from 30/6/98 to enforce her claim under the cheque. She has been compelled to fight three rounds of legal battle by now. If the sentence suffers from any defect, it is only that the sentence imposed is too lenient. However, I take note of the request that the substantive sentence of imprisonment may be avoided. I have already adverted to the principles governing imposition of **Crl.R.P.No.25 of 2006** -: 7 :- sentence in a prosecution under Sec.138 of the N.I. Act in the decision reported in **Anilkumar v. Shammy (** 2002 (3) K.L.T. 852). I am not satisfied that there are any compelling circumstances available in this case which would justify or warrant the imposition of any deterrent substantive sentence of imprisonment on the petitioner. Leniency can be shown on the question of sentence. But at the same time the courts cannot ignore the plight of the respondent/complainant who has been compelled to fight three rounds of legal battle and wait from 1998 for redressal of her grievance. An appropriate direction for payment of compensation coupled with a lenient substantive sentence of imprisonment and a default sentence as permitted under **Ganga v. Lakshmi Ammal** (2008 (2) KLT 306) shall meet the ends of justice, I am satisfied. 11. In the result: (a) This Criminal Revision Petition is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Sec.138 of the N.I. Act are upheld. (c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Sec.357(3) of the Cr.P.C. ## **Crl.R.P.No.25 of 2006** -: 8 :- to pay an amount of Rs.1 lakh as compensation and in default, to undergo simple imprisonment for a period of 25 days. The amount, if realised, shall be released entirely to the complainant. 8. The petitioner shall have time till 2/5/09 to appear before the learned Magistrate and serve the modified sentence hereby imposed. The modified sentence shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on that date. 9. Needless to say, if the petitioner does not appear before the learned Magistrate as directed, the learned Magistrate shall be at liberty to take necessary steps under Sec.446 Cr.P.C. against the petitioner and his sureties. ## **(R. BASANT, JUDGE)** ## **Nan/** **Crl.R.P.No.25 of 2006** -: 9 :- ## **R. BASANT, J.** **------------------------------------------------Crl.R.P.No.25 of 2006 ------------------------------------------------Dated this the 27[th] day of March 2009** ## **ORDER**