Lekha v. K. Jayakumar and State (Criminal Revision Petition No. 1174 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 26TH DAY OF MAY 2017/5TH JYAISHTA, 1939** **Crl.Rev.Pet.No. 1174 of 2016** **-----------------------------** **ORDER DATED 12-04-2016 IN CRL.A 488/2013 OF ADDITIONAL DISTRICT COURT - V, THIRUVANANTHAPURAM ST 1993/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -VI, THIRUVANANTHAPURAM** **.....** **PETITIONER(S)/1ST RESPONDENT/COMPLAINANT:** **-----------------------------------------** **LEKHA, AGED 62 YEARS, D/O.SHAMAL BAI, HOSE NAME 'SARANYA' NO.18, ALAPPURAM LANE, MUTTADA P.O., THIRUVANANTHAPURAM.** **BY ADVS.SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH** ## **RESPONDENT(S)/APPELLANT & STATE/ACCUSED & STATE:** **------------------------------------------------** **1. K. JAYAKUMAR, AGED 50 YEARS, S/O.KRISHNAN, KRISHNA SADANAM, NEAR M.V.HIGHER SECONDARY SCHOOL, ARUMANNOOR P.O., THIRUVANANTHAPURAM - 695 525.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031.** **R1 BY ADV. SRI.SHAJIN S.HAMEED** **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26-05-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** ## **ALEXANDER THOMAS, J. ---------------------------Crl.R.P.No. 1174 of 2016 ----------------------------** ## Dated this the 26th day of May, 2017 ## **ORDER** The petitioner is the complainant in S.T.No.1993 of 2009 on the file of the Judicial First Class Magistrate Court-VI, Thiruvananthapuram in which the first respondent herein has been arrayed as accused for an offence punishable under Section 138 of the Negotiable Instruments Act. The amount covered by Ext.P1 cheque dated 15.06.2009 was for Rs.9,00,000/-. The trial court as per its judgment rendered on 8.11.2013 has convicted the accused and has sentenced him to undergo simple imprisonment for six months and to pay fine of Rs.11.88 lakhs to the complainant and the amount so received as fine has to be directly disbursed as compensation to the complainant under Section 357(1)(b) Cr.P.C and in default of the payment of the said amount the accused has to undergo simple imprisonment for a further period of three months. Crl.R.P.No. 1174 of 2016 2 2. The accused aggrieved by the trial court verdict had preferred Crl.A.No.488 of 2013 before the Court of Additional Sessions Court-V, Thiruvananthapuram. The appellate Court as per impugned judgment rendered on 12/04/2016 has affirmed the conviction but has interfered with the substantive sentence alone and subsequently modified the substantive sentence of simple imprisonment for three months to imprisonment till rising of the court and the appellate court has made it clear that there is no interference with the fine portion. 3. The complainant has filed the above Criminal Revision Petition contending that reduction of the substantive sentence of simple imprisonment from six months to imprisonment till rising of the court is disproportionate and low and should be enhanced to at least six months as has been done by the trial court. Further it is also contended that no substantive sentence has been imposed on the accused and further that direction to pay the fine is without default sentence and that this will mean that even if the accused does not pay the amount he need not have to suffer any default sentence. It is on the basis of all these contentions that the Crl.R.P.No. 1174 of 2016 3 complainant has filed the above said revision petition. 4. Heard Sri.R.S.Kalkura, learned counsel appearing for the petitioner, Sri.Shajin S.Hameed, learned counsel appearing for R1 (accused) and Sri.Jestin Mathew, learned Public Prosecutor appearing for R2 State. ## 5. The operative portion of the trial court judgment as borne out by para 24 thereof reads as follows: _“24. I, therefore, convict and sentence the accused to undergo simple imprisonment for 6 months and also to pay a fine of Rs.11,88,000/- to the complainant U/s 138 of the Negotiable Instruments Act. The fine amount, if realized, will be paid to the complainant as compensation U/s 357(1)(b) Cr.P.C. In default of payment of fine, the accused will undergo simple imprisonment for 3 months more.”_ ## 6. The operative portion of the appellate court judgment as borne out by para 21 thereof reads as follows: - _“21. Point No.3 In the result_ _1. The Appeal stands allowed in part._ _2. The Judgment of conviction dtd 8.11.13 in ST 1993/09(A) passed by JMFC VI at Thiruvananthapuram stands confirmed._ _3. Sentencing the appellant to undergo simple imprisonment for a period of six months alone is modified to till the raising of the court. (no interference in the fine portion)_ _4. The appellant is directed to appear before the court below on 31.5.16 for the execution of the sentence._ _5. Failing which the court below is at liberty to execute the sentence as per Law._ Crl.R.P.No. 1174 of 2016 4 _6. The Office is strictly directed to forward the lower court records along with a copy of the Appeal Judgment without causing any delay.”_ 7. From mere reading of the above said paragraphs of the trial court and appellate court judgments it is clear that the appellate court has only modified the substantive sentence of simple imprisonment for six months to imprisonment till rising of the court. The conviction has been fully affirmed and no other interference with the sentence of fine or default clause is made except reducing the substantive sentence for six months to imprisonment till rising of the court. Sri.Shaijin S Hameed, learned counsel appearing for the 1[st] accused would also reiterate that the default clause as imposed in the trial court judgment has not been interfered by the appellate court and that the contention of the appellants that there is no default clause is absolutely wrong. However the counsel for R1(accused) would submit that the accused has separately filed Crl.R.P.No.1028 of 2016 so as to impugne the conviction on the modified sentence imposed in this case and that the revision petition may be closed without prejudice to the contentions of the accused that are raised in Crl.R.P.No.1028 of 2016 regarding the correctness of the conviction and the Crl.R.P.No. 1174 of 2016 5 sentence. 8. The further contention of the appellants with the modifications made by the appellate court that, there is no substantive sentence imposed on the petitioner is also incorrect inasmuch as simple imprisonment till rising of the court is also a substantive sentence and the only difference made by the appellate court is that instead of confirming substantive sentence the same has been reduced to simple imprisonment till rising of the court. It is clarified that mere reading of the appellate court judgment will make it clear that what has been modified by the appellate court is only in relation to the reduction of the substantive sentence of six months to imprisonment till rising of the court and all the other orders of the appellate court has been kept in tact. Since accused had already filed Crl.R.P.No.1028/16 challenging very conviction and the sentence in this case, it is made clear that the findings and observations of this order will not in any manner preclude the rival parties from raising their respective contentions in Crl.R.P.No.1028/16 regarding the very correctness or otherwise of the impugned conviction and Crl.R.P.No. 1174 of 2016 6 sentence involved in this case. 9. The decision of the appellate court in reducing the substantive sentence of simple imprisonment for six months to imprisonment till rising of the court cannot be faulted with. The Apex court in the judgment in **Kaushalya Devi Massant vs. Roopkishore** reported in **AIR 2011 SC 2566** has held that an offence of dishonor of cheque as contained in Sec.138 of the Negotiable Instruments Act is essentially a civil wrong which has been given criminal overtone and that the gravity of such a complaint cannot be equated with an offence under IPC and instead of jail sentence, imposition of fine payable as compensation will be sufficient to meet the ends of justice. It is also held by the Apex court in **Damodar S. prabhu v. Sayed Babalal** reported in **(2010 (2) KLT 587(SC)** that in case of dishonour of cheques, it is compensatory aspect of the remedy which should be given priority over the punitive aspect. So the present revision petition is bereft of any merit and the same is to be closed without prejudice to the rival contentions of both sides as raised in the pending Crl.R.P.No.1028 of 2016. Crl.R.P.No. 1174 of 2016 7 With these observations and directions the Crl.R.P stands dismissed. Sd/- ## **ALEXANDER THOMAS JUDGE** //True Copy\\ P.A to Judge IAP