K.P. Easy v. P.G. Peter and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, THE 22ND DAY OF AUGUST 2017/15TH PHALGUNA, 1927 Crl.Rev.Pet.No. 1631 of 2003 ----------------------------AGAINST THE ORDER/JUDGMENT IN CRA 820/2001 of II ADDL.SESSIONS COURT, ERNAKULAM DATED 19-03-2003 AND AGAINST THE ORDER/JUDGMENT IN ST 1927/1999 of J.M.F.C.-I, KOCHI DATED 31-10-2001 ## REVISION PETITIONER:APPELLANT/ACCUSED: ------------------------------------- K.P.EASY, S/O.PAILY, RESIDING AT KANDATHIL PARAMBIL HOUSE, KUMBALANGHY, COCHIN - 682007. ## BY ADV. SRI.POLY MATHAI ## RESPONDENTS : RESPONDENT/COMPLAINANT :- --------------------------------------- 1. P.G.PETER, PERUMPALLY HOUSE, WARD No.III, KUMBALANGHY.P.O., KOCHI - 682007. 2. STATE OF KERALA, REPRESENTED BY DIRECTOR OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. ## R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **ALEXANDER THOMAS, J. ------------------------------Crl.R.P.No.1631 of 2003 --------------------------------Dated this the 22[nd] day of August, 2017** ## **ORDER** The petitioner is the accused for offence punishable under Section 138 of the Negotiable Instruments Act, in S.T.No. 1927 of 1999 on the file of the Judicial First Class Magistrate Court, Kochi, instituted on the basis of a complaint filed by the 1[st] respondent herein. Ext.P1 is the dishonoured cheque dated 14.08.1999 is for Rs.48,000/-. 2. The trial court as per the impugned judgment rendered on 31.10.2001 has convicted the petitioner for the aforesaid offence and sentenced him to undergo simple imprisonment for six months and to pay Rs.48,000/- as compensation to the complainant under Section 357 (3) of the Code of Criminal Procedure. Aggrieved thereby the petitioner had preferred Crl.Appeal Crl.R.P.No.1631/2013 ..2.. No.820 of 2001 before the IInd Additional Sessions Judge, Ernakulam. The appellate Sessions Court as per the impugned judgment rendered on 19.03.2003 has confirmed the conviction and modified the substantive sentence of simple imprisonment for six months by reducing the same to four months and has also confirmed the direction to pay the compensation of Rs.48,000/-. It is aggrieved by these verdicts of both the courts below, the petitioner has preferred the instant revision petition by invoking the remedies under Section 397 and 401 of Cr.P.C. 3. The revision petition was filed as early as on 09.07.2003. This Court as per order dated 10.07.2003 has admitted the present revision petition and had ordered notice to the respondents. This Court had also passed interim order dated 10.07.2003 on Crl.M.A.No. 6991/2003 in this revision petition directing that the execution of the impugned sentence in this case shall be Crl.R.P.No.1631/2013 ..3.. suspended on the petitioner executing bond for Rs.25,000/- and on furnishing two solvent sureties for the like sum each to the satisfaction of the trial court concerned and on depositing Rs.50,000/- before the trial court within one month from 10.07.2003. It is now intimated by the trial court that the accused has not remitted the said amount. 4. Earlier notice could not be served to respondent No.1 (complainant) as the petitioner had not remitted process fee in that regard. Later as per order dated 25.11.2015 this Court had ordered that notice should be taken out to respondent No.1 (complainant) through the Assistant Commissioner of Police, Mattancherry. Accordingly notice was sent to the 1[st] respondent through the Assistant Commissioner of Police, Mattancherry on 27.11.2015 with hearing date as on 4.12.2015. This is evident from the endorsement dated 27.11.2015 made by the Registry. Crl.R.P.No.1631/2013 ..4.. 5. When the matter had come up for consideration on 4.12.2015, it was reported by the Assistant Commissioner of Police, Mattanchery, that respondent No.1 is now abroad. Since notice was taken out by registered post to respondent No.1 (complainant) in the address in the cause title of the complaint as shown by the party who is none other than the complainant, it is only to be treated that notice to respondent No.1 (complainant) has been duly completed. 6. Earlier this Court as per order dated 29.8.2013 had referred this case to the Lok Adalath constituted under the Legal Services Authorities Act. The Lok Adalath had issued notice to revision petitioner (accused) and respondent No.1 (complainant) and pursuant to that the elder brother of the 1[st] respondent was authorised by the 1[st] respondent to participate in the Adalath proceedings. The revision petitioner as well as the brother of the 1[st] respondent had thus participated in the Adalath Crl.R.P.No.1631/2013 ..5.. proceedings. It was submitted on behalf of the revision petitioner as well as the 1[st] respondent/complainant before the Adalath on 28.8.2014 that they have compromised the matter and the matter has been fully settled. However since the 1[st] respondent was then not personally present, as he was presumably abroad, the Lok Adalath could not pass a formal award and therefore had sent this case back to this Court for recording compromise between the parties. The proceedings before the Lok Adalath dated 28.8.2014 reads as follows:- “Revision petitioner present. On behalf of the 1[st] respondent his elder brother is present with an authorisation in his favour stating that the brother of the respondent is authorised to settle the matter. On the basis of the authorisation, the parties have compromised the matter and the matter is reported to be settled. However, since respondent is not personally present, no Award can be passed by the Adalath. Hence Crl.R.P.No.1631/2013 ..6.. the matter is sent back to Court for recording the compromise between parties.” 7. It is thereafter that this Court had passed order dated 25.11.2015 directing issuance of notice to respondent No.1 (complainant) through the Assistant Commissioner of Police, Mattanchery, who had later reported on 4.12.2015 that respondent No.1 has gone abroad. As noted hereinabove, notice to respondent No.1 has been duly completed. Both parties had clearly stated before the Adalath that the matter has been fully settled and that the parties have arrived at a compromise in the matter, as can be seen from the proceedings dated 28.8.2014 of the Lok Adalath referred to recorded hereinabove. 8. Sri.Poly Mathai, learned counsel appearing for the revision petitioner (accused) would submit on the basis of the instructions from the party that pursuant to the said settlement arrived at between the parties as Crl.R.P.No.1631/2013 **==> picture [22 x 8] intentionally omitted <==** referred to in the Adalath's order dated 28.8.2014, the petitioner had paid a total amount of Rs.52,000/-, which was received on behalf of the 1[st] respondent/complainant by his elder brother who was authorised to participate in the Adalath proceedings and the said amount of Rs.52,000/- was paid. Though notice has been duly served on respondent No.1 through the Lok Adalath as well as through this Court, so far respondent No.1 has not come forward to contest this case before this Court. It is reported that respondent No.1 is now settled abroad and presumably as he has received the entire amount of Rs.52,000/- by way of settlement during the course of Adalath proceedings, he is no longer interested to enter appearance before this Court. The dishonoured cheque is for Rs.48,000/- and the compensation amount ordered by both the courts below is also Rs.48,000/-. The matter has been pending before this Court since 9.7.2003 and no useful purpose to be served by keeping this revision Crl.R.P.No.1631/2013 ..8.. petition pending any longer. The Lok Adalath has clearly recorded the compromise settlement between the parties as early as on 28.8.2014. The Lok Adalath could not pass any formal award only due to the absence of the 1[st] respondent/ complainant as he has been abroad. Though the matter was sent back before this Court by the Lok Adalath only for recording the compromise between the parties, the 1[st] respondent has not cared to appear before this Court, even though he was actually participating in the Lok Adalath through his authorised representative (elder brother) and the matter has been fully compromised and settled. It has been held by the Apex Court in various decisions that the offence committed under Section 138 of the Negotiable Instruments Act is essentially a civil wrong which is given criminal overtones and that the gravity of a complaint for offence under Section 138 of the Negotiable Instruments Act cannot be equated with any offence under the Indian Penal Code Crl.R.P.No.1631/2013 ..9.. and instead of jail sentence, imposition of fine payable as compensation could be more than sufficient to meet the ends of justice. Further that in such cases the compensatory aspect should be given more emphasis than the punitive aspects (see **Damodar S.Prabhu v. Sayed Babalal H.** reported in **[AIR 2010 SC 1907]** and **Kaushalya Devi Massand v. Rookishore** reported in **[AIR 2011 SC 2566]** ). Accordingly the following orders are passed:- - (i) The impugned conviction imposed on the petitioner for the offence punishable under Section 138 of the N.I. Act is confirmed. - (ii) The substantive sentence of four months simple imprisonment imposed on the petitioner in this case will stand set aside. - (iii) In supersession of the orders passed by both the courts below it is ordered that petitioner is only sentenced to pay a fine of Rs.52,000/-, which shall be Crl.R.P.No.1631/2013 ..10.. disbursed as compensation to the complainant in terms of Section 357(1) (b) of the Cr.P.C. Since the petitioner has paid the entire amount of Rs.52,000/- directly to the authorised representative of the complainant in the Adalath proceedings as referred to hereinabove, such payments will be treated as if those amounts has been paid as fine by the petitioner and then disbursed as compensation to the complainant in terms of Section 357(1) (b) of the Cr.P.C. Since the said amount has already been paid, there is no necessity to impose any default sentence clause. - (iv) The trial court will make necessary entries in the file register as if the said amount of Rs.52,000/- has been paid by the petitioner as fine and then disbursed to the complainant as compensation in terms of Section 357(1)(b) of the Cr.P.C. Crl.R.P.No.1631/2013 **==> picture [28 x 8] intentionally omitted <==** 9. The petitioner will produce a certified copy of this order before the trial court concerned, in order to enable the said court to make necessary entries in the file register as directed hereinabove. Apart from making necessary entries in the file register as directed hereinabove, no further action is required on the part of the trial court for execution of the impugned sentence of fine in this case. The Registry will forward a certified copy of this order to the trial court concerned. With these observations and directions, this Crl.R.P. will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** AMV/skj