Kolatteri Purushothaman v. P.B. Mohan Kumar and The State of Kerala

**CR** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 7TH DECEMBER 2016/16[th] AGRAHAYANA, 1938 Crl.Rev.Pet.No. 507 of 2011 ( ) ---------------------------- AGAINST THE JUDGMENT IN CRA 318/2005 of ADDL.SESSIONS COURT (ADHOC)-II, THALASSERY DATED 29-09-2010 AGAINST THE JUDGMENT IN CC 466/2003 of J.M.F.C.,TALIPARAMBA REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------- KOLATTERI PURUSHOTHAMAN, S/O.KUNHIRMAN,AGED 40 YEARS,IRIKKUR AMSOM, KULINHA DESOM,TALIPARAMABA TALUK, KANNUR DISTRICT. BY ADVS.SRI.V.A.SATHEESH SRI.J.ABHILASH SRI.V.T.MADHAVANUNNI RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------- 1. P.B.MOHAN KUMAR,S/O.BHASKARAN NAIR, 50 YEARS,PUTHIYAVEETTIL, KALLIAD AMSOM, URATHOOR DESOM,KOSAVAN VAYAL PO, TALIPARAMBA TALUK,, KANNUR DISTRICT. 2. THE STATE OF KERALA,REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. SRI.K.N.ABHILASH R1 BY ADV. SRI.SUNIL NAIR PALAKKAT BY PUBLIC PROSECUTOR C.K.PRASAD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 7-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **CR** ## **B. SUDHEENDRA KUMAR, J.** ..................................................... **Crl.R.P. No. 507 of 2011** ..................................................... ## **Dated this the 7[th] day of December, 2016** ## **ORDER** The revision petitioner was found guilty concurrently by the courts below under Section 138 of the Negotiable Instruments Act, 1881. 2. The trial Court sentenced the revision petitioner to simple imprisonment for three months and a compensation of Rs. 20,000/- under Section 357 (3) Cr.P.C., with a default clause for simple imprisonment for two months. 3. In the appeal, the sentence was modified, setting aside the jail term awarded by the trial Court. The appellate court sentenced the revision petitioner to a fine -: 2 :- Crl.R.P. No. 507 of 2011 of Rs. 10,000/- and a compensation of Rs. 25,000/- under Section 357 (3) Cr.P.C. with a default clause for simple imprisonment for three months. 4. Heard. 5. The case of the complainant is that the revision petitioner issued Ext. P1 cheque in favour of the complainant towards the discharge of the liability of the revision petitioner. The said cheque was presented for encashment. However, it was dishonoured due to insufficiency of funds in the account of the revision petitioner. Statutory notice was issued, which was received by the revision petitioner. However, the revision petitioner did not pay the cheque amount. 6. Before the trial Court, PW1 was examined and Exts. P1 to P6 were marked for the complainant. No evidence was adduced on the side of the revision petitioner. 7. The courts below correctly appreciated the oral -: 3 :- Crl.R.P. No. 507 of 2011 and documentary evidence adduced by the complainant and concurrently found that the revision petitioner committed the above said offence. No material has been brought to the notice of this Court to indicate that the appreciation of evidence or the concurrent finding of conviction by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding of conviction by the courts below does not warrant any interference by this Court. 8. The learned counsel for the revision petitioner has submitted that the appellate court was wrong in awarding fine as well as compensation under Section 138 of the N.I.Act. The records would show that the appellate court sentenced the revision petitioner to a fine of Rs. 10,000/and a compensation of Rs. 25,000/- under Section 357 (3) Cr.P.C. with a default clause for simple imprisonment for three months. 9. In this context, it is relevant to read Section 357 Cr.P.C. which is extracted hereunder:- -: 4 :- Crl.R.P. No. 507 of 2011 **“357. Order to pay compensation:-** (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment order the whole or any part of the fine recovered to be applied - a) in defraying the expenses properly incurred in the prosecution; b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. -: 5 :- Crl.R.P. No. 507 of 2011 ## (2) xxxx xxxx (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. **==> picture [128 x 15] intentionally omitted <==** **==> picture [134 x 14] intentionally omitted <==** Section 357 (3) Cr.P.C. provides that when a court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. It is clear from sub Section (3) of Section 357 Cr.P.C., that the court can award compensation under Section 357 (3) Cr.P.C. only if fine does not form part of the sentence. If fine forms part of the sentence, the Court can award compensation only under Section 357 (1) Cr.P.C. and not under Section 357 (3) Cr.P.C. The compensation under -: 6 :- Crl.R.P. No. 507 of 2011 Section 357 (1) Cr.P.C can be awarded only out of the fine amount and hence, the said compensation cannot exceed the fine amount. When there is no sentence of fine, no direction for compensation under Section 357 (1) Cr.P.C can be issued. If the Court imposes a sentence other than fine, the Court can award compensation under Section 357 (3) Cr.P.C., if the Court deems it necessary. 10. The Apex Court in Sivasuriyan v. Thangavelu [(2006) 1 SCC (Cri) 532] considered the question as to whether the Court can direct payment of compensation in exercise of power under sub-section (3) of Section 357 in a case where fine already forms part of a sentence and held that the power under Section 357 (3) Cr.P.C. can be exercised only when Court imposes sentence of which fine does not form a part. 11. In the present case, the only sentence awarded by the appellate court was fine. Since sentence of fine was awarded by the appellate court, the order of the appellate court awarding compensation under Section 357 (3) -: 7 :- Crl.R.P. No. 507 of 2011 Cr.P.C is not legal and correct and consequently, the same cannot be sustained. In the result, this Revision Petition stands allowed in part, confirming the conviction passed by the courts below and setting aside the sentence passed by the appellate court under Section 138 of the N.I. Act, and the matter is remitted to the appellate court for awarding proper sentence in accordance with law, affording reasonable opportunity to both sides of being heard. The parties shall appear before the appellate court on 04.01.2017. Sd/-B. SUDHEENDRA KUMAR, JUDGE. Ani/ /true copy/ ## P.S. to Judge