M.N. OMANA v. SUDHAKARAN NAIR & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 28TH DAY OF FEBRUARY 2013/9TH PHALGUNA 1934** **Crl.Rev.Pet.No. 1010 of 2003 (B)** **--------------------------------------------[CRL.A.NO.176/1997 OF THE ADDITIONAL DISTRICT & SESSIONS (ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA DATED 27-01-2003, C.C.NO.268/1996 OF THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA DATED 28-11-1997]** **................** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **M.N. OMANA, D/O. NEELAKANDAN, MANALADI THEKKEKARA, MALLASSERY.P.O., PATHANAMTHITTA.** **BY ADV. SRI. LIJU.V.STEPHEN.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **-----------------------------------------------------------------------------------** **1. SUDHAKARAN NAIR. K.G., S/O. GOPALAN NAIR, SANGEETHA ELECTRONICS, MALLASSERY.P.O., PATHANAMTHITTA, (KALAKKUZHIYIL VEEDU, VAZHAMUTTOM EAST .P.O., PATHANAMTHITTA).** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SRI.M.V.S.NAMBOOTHIRY, SRI.RATHEESH.P.R, SRI.NIJOE JOSEPH, R2 BY PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **CRL.R.P.NO.1010/2003-B:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** ## **ANNEXURE-I: COPY OF THE CASUALTY CARD OF THE PETITIONER DTD. 02/05/03 FROM THE MEDICAL COLLEGE, THIRUVANANTHAPURAM.** **ANNEXURE-II: COPY OF THE MEDICAL CARD (O.P.CARD) NO.62799 DTD. 24/04/03 FROM THE MEDICAL COLLEGE, TRIVANDRUM.** ## **RESPONDENTS' ANNEXURES: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Prv.** ## **P.D. RAJAN, JUDGE.** ------------------------------------------Crl. R.P.No.1010 of 2003 ---------------------------------------------Dated this the 28[th] day of February, 2013 ## **ORDER** The revision petitioner was convicted by the trial court U/S.138 of the Negotiable Instruments Act and sentenced to pay fine of Rs.40,000/- with a default sentence of simple imprisonment for four months under the above Sections. Out of the fine amount, Rs.30,000/- was directed to be paid to complainant as compensation U/S 357 Cr.P.C. An appeal preferred was dismissed by the District and Sessions (Adhoc) Fast Track Court-II confirming the conviction passed by the trial court. Challenging the said judgments, the accused preferred this petition. 2. The complainant's allegation in the trial court was that the revision petitioner borrowed a sum of Rs.30,000/- from the 1[st] respondent and in discharge of that debt issued a cheque. When the above cheque was presented for encashment, it was dishonoured for the reason of “no sufficient fund”. In the Crl. R.P.No.1010/03 2 circumstances, notice was issued to the revision petitioner demanding the due amount and he sent reply notice. Hence a complaint filed in the trial court. 3. The learned Magistrate examined the 1[st] respondent as PW1 and manager of the bank as PW2 and his documents were marked as Exts.P1 to P9. The incriminating circumstances brought out in evidence were denied by the revision petitioner while questioning under Section 313 Cr.P.C. The trial magistrate convicted the accused/revision petitioner. Aggrieved by that, she preferred an appeal before the lower appellate court where the conviction passed by the trial court was confirmed. 4. Heard both sides. The learned counsel for the revision petitioner contended that the lower court failed to appreciate the evidence. The material contradictions and omissions were not considered by the trial court. The compensation and fine imposed by both courts are not in according to law. But, the learned counsel for the 1[st] respondent strongly resisted the above contention. 5. Now the question that arises for consideration is Crl. R.P.No.1010/03 3 whether there is any illegality or irregularity? If so, the conviction and sentence passed by the court below under Section 138 of the Negotiable Instruments Act is sustainable in law? The courts below concurrently opined that evidence of PW1 is believable and the documents were also admissible. It is clear from the evidence of PW1 that Ext.P1 cheque was issued in discharge of a debt. When Ext.P1 was presented for encashment, it was dishonoured for the reason of funds insufficient. Ext.P2 is the dishonour memo and Ext.P3 is the intimation. The 1[st] respondent issued a lawyer notice. Ext.P4 is the copy of the lawyer notice. Ext.P5 is the postal receipt and Ext.P6 is the acknowledgment card. Ext.P7 is the reply notice issued by the revision petitioner. PW2 brought the extract of the ledger, Ext.P8 and extract of cheque returned register, Ext.P9. Analysing the evidence in Exts.P1 to P9, it shows that Ext.P1 was issued in discharge of a debt. When it was presented for encashment, it was dishonoured for the reason of funds insufficient. Even though, Ext.P7 reply notice was issued, no evidence has been adduced by him to prove that Ext.P1 was issued not in discharge of any debt or liability. Crl. R.P.No.1010/03 4 Several contentions were advanced by the revision petitioner denying the issuance of cheque, but, the trial court accepted the case of the defacto complainant. 6. When issuance of cheque was proved by the defacto complainant, a statutory presumption under Section 139 of the Negotiable Instruments Act will attract. The trial court and the 1[st] appellate court reached in a conclusion that the cheque was issued in discharge of debt and presumption drawn in this case. According to Section 139 of the Negotiable Instruments Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. I find no illegality or irregularity in convicting the accused, but, the trial court sentenced to pay a fine of Rs.40,000/- in default to undergo simple imprisonment for 4 months. It is also directed to pay Rs.30,000/- to the complainant under Section 357 Cr.P.C. The appellate court fully endorsed the finding of the trial court. The learned counsel appearing for the revision petitioner contended that the fine imposed by the trial court was not in 5 Crl. R.P.No.1010/03 accordance with law. Hence he prays to modify the sentence. 7. The learned Magistrate passed a sentence to pay a fine of Rs.40,000/- in default of which to undergo simple imprisonment for four months. This finding was approved by the lower appellate court. Apex Court in _**Bhaskaran**_ v. _**Balan**_ [1999(3) KLT 440 (SC) discussed the principle of sentencing, limitation of imposing fine and granting compensation in cases under Section 357(3) of Cr.P.C. and in _**Bhaskaran's case**_ (supra) held that (para 31) : “However, the magistrate in such cases can alleviate the grievance of the complainant by making resort to S.357(3) of the Code. It is well to remember that this Court has exphasized the need for making liberal use of that provision, [Hari Krishnan and State of Haryana v. Sukhbir Singh and Ors. JT 1988 (3) SC 11]. No limit is mentioned in the sub-section and therefore, a magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a court of magistrate of first class in respect of a cheque which covers an amount of exceeding Rs.5,000/- the court has power to award compensation to be paid to the complainant.” There is no dispute with regard to the liability incurred in this case. Crl. R.P.No.1010/03 6 ## Section 29 of Cr.P.C. reads thus: “ **29. Sentence which Magistrate may pass.-** (1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees, or of both. (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding five thousand rupees or of both (4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class.” The maximum punishment of fine that a Magistrate can impose is restricted to Rs.5,000/-. Therefore, it is clear that the sentence passed by the Magistrate imposing fine of Rs.40,000/- is against the power imposed upon the Magistrate. Hence, that is to be modified. 8. In this context, I have considered whether the compensation is allowable under Section 357(3) of Cr.P.C. On reading of Section 357 Cr.P.C. it is clear that it empowers the court not only to impose a fine alone but also it directs to impose compensation to the person, who suffers any loss. Crl. R.P.No.1010/03 7 This view has been supported by several decisions of the Apex Court and this Court. In _**Sarwan Singh and others**_ v. _**The State of Punjab**_ [AIR 1978 SC 1525] apex court discussed the object and scope of Section 357. In another decision of _**Balraj**_ v. _**State of U.P.**_ [AIR 1995 SC 1935] apex court directed to pay compensation to the victim by the accused. In _**Hari Kishan and State of Haryana**_ v. _**Sukhbir Singh and others**_ [AIR 1988 SC 2127] two Judges bench of the apex court discussed the principle of awarding compensation to the victim, after the sentence of fine imposed on the accused. In the decision of _**Aboobacker**_ v. _**Ismail**_ [2005 (1) KLT 663], this Court held that the powers under Section 357(3) can be invoked by an appellate or revisional court and a default sentence can be prescribed to enforce compliance with such a direction for payment of compensation. The sentence of imprisonment can be granted for default in payment of compensation under Section 357(3) of the Cr.P.C. has been discussed by the Supreme Court in _**Abbas**_ v. _**Sabu Joseph**_ [2010 (2) KLT 943 (SC)] held that; “A sentence of imprisonment can be granted for Crl. R.P.No.1010/03 8 default in payment of compensation awarded under S.357(3) of Cr.P.C. The whole purpose of the provision is to accommodate the interests of the victims in the criminal justice system. Sometimes the situation becomes such that there is no purpose is served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. Hence on default of payment of this compensation, there must be a just recourse. Not imposing a sentence of imprisonment would mean allowing the accused to get away without paying the compensation and imposing another fine would be impractical as it would mean imposing a fine upon another fine and therefore would not ensure proper enforcement of the order of compensation. While passing an order under S.357 (3), it is imperative for the courts to look at the ability and the capacity of the accused to pay the same amount. S.431 clearly provides that an order of compensation under S.3578(3) will be recoverable in the same way as if it were a fine. S.421 further provides the mode of recovery of a fine and the section clearly provides that a person can be imprisoned for non-payment of fine. Therefore, going by the provisions of the Code, the intention of the Legislature is clearly to ensure that mode of recovery of a fine and compensation is on the same footing. In light of the aforesaid reasoning, the contention of the accused that there can be no sentence of imprisonment for default in payemtn of compensation under S.357(3) should fail.” The above principle shows that revisional court has power to impose compensation in default clause. The trial court in this case imposed a fine of Rs.40,000/- against the revision petitioner. Hence, the sentence imposed by the trial court is to Crl. R.P.No.1010/03 9 be modified. In the result, the accused, revision petitioner is sentenced as follows: a) The revision petitioner is sentenced to imprisonment till rising of the court under Section 138 of the Negotiable Instruments Act. b) She is also directed to pay compensation of Rs.30,000/- under Section 357(3) Cr.P.C. to the defact complainant, in default of payment of compensation, simple imprisonment for one month. The Crl. R.P. is disposed accordingly. ## **P.D. RAJAN, JUDGE.** acd Crl. R.P.No.1010/03 10 Crl. R.P.No.1010/03 11