P. Hussain v. Kallidumbil Kunjavutty and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** ## **Crl.Rev.Pet.No. 67 of 2003 ( )** **------------------------------CRL.A.NO. 97/1998 OF SESSIONS COURT, MANJERI CC.NO. 821/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM** **-------------------** ## **REVISION PETITIONERS/APPELLANT/ACCUSED:** **------------------------------------------------------------------------** **P.HUSSAIN, PUTHERICKAL HOUSE, PARAPPANANGADI, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT & STATE:** **------------------------------------------------------------------------------------** ## **1. KALLIDUMBIL KUNJAVUTTY,** **S/O.KUNJIMOIDEENKUTTY, INDIANOOR AMSOM, VILLOOR DESOM, MALAPPURAM DISTRICT.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI.** ## **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## ALEXANDER THOMAS, J. ----------------------------Crl.R.P.No.67 Of 2003 --------------------------------- Dated this the 9th day of October, 2017. ## O R D E R The petitioner has been indicted for the offence punishable under Sec.138 of the Negotiable Instruments Act in C.C.No.821/1996 on the file of the Judicial First Class Magistrate Court, Malappuram, instituted on the basis of the complaint filed by the R-1 herein. Ext.P-1 dishonoured cheque dated 20.3.1996 is for Rs.25,000/-. The trial court as per the impugned judgment rendered on 2.7.1998 has convicted the petitioner for the above said offence and has sentenced him to undergo simple imprisonment for 6 months and to pay fine of Rs.30,000/- and in default therefore to undergo simple imprisonment for 6 months. Out of the fine amount so realised, an amount of Rs.25,000/- was ordered to be paid as compensation to the complaint in terms of Sec.357 (1)(b) of the Cr.P.C. Aggrieved thereby, the petitioner has preferred Criminal Appeal No.97/1988 before the appellate Sessions Court concerned. The appellate court (Court of Sessions Judge, Manjeri), as per the impugned judgment rendered on 23.10.2002 has affirmed the conviction but has ::2:: Crl.R.P.No.67 Of 2003 modified the substantive sentence of simple imprisonment for 6 months by reducing the same to simple imprisonment for 3 months and has ordered the petitioner to pay compensation of Rs.25,000/- and in default thereof to undergo simple imprisonment for 3 months. It is challenging these judgments of the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies conferred under Sec.397 read with Sec.401 of the Code of Criminal Procedure. 2. The instant Revision Petition has been filed by the petitioner as early as on 8.1.2003. This Court as per order dated 9.1.2003 had admitted the Revision Petition and had also passed interim order dated 9.1.2003 suspending execution of the impugned sentence on the petitioner executing a bond for Rs.20,000/- with two solvent sureties each for the like sum to the satisfaction of the trial court and on depositing one half of the cheque amount within 2 months, etc. The trial court has now furnished a report to the Registry of this Court dated 28.9.2017 intimating that on verification of the fine register pertaining to C.C.No.821/1996, it is seen that an amount of Rs.12,500/- is seen pending in fine arrear register for collection from 2.7.1998 onwards and as per register no remittance is seen made in C.C.No.821/1996. ::3:: Crl.R.P.No.67 Of 2003 3. Earlier the petitioner had not remitted the process fee for taking out notice to R-1 and service was not complete. Later, the petitioner has taken out notice to R-1 through Circle Inspector of Police on 14.7.2015 and notice was returned stating that R-1 expired on 3.1.2004. The petitioner has not so far cared to take steps to implead and serve notice on the LRs of the ceased complainant. This Court could have dismissed this revision petition solely for non prosecution due to non-curing of such a vital defect. However, this Court is inclined to consider the matter on merits. 4. Heard Sri.Babu.S.Nair, learned counsel appearing for the revision petitioner and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State. 5. The case of the petitioner is to the effect that in discharge of the liability of Rs.25,000/- owed by the accused to the complainant, the revision petitioner-accused had issued the instant Ext.P-1 cheque dated 20.3.1996 for Rs.25,000/- drawn from his account and payable in favour of the complainant and the cheque when presented was resulted in dishonour on the ground of “insufficiency of funds”, which resulted the complainant in issuing statutory demand notice under Sec.138 proviso (b) of the N.I. Act calling upon the revision petitioner-accused to pay the amount covered by the cheque within the requisite time. ::4:: Crl.R.P.No.67 Of 2003 Since the amount was not paid, after adhering to the procedural formalities, the complainant has instituted the instant complaint which resulted in trial. During trial, complainant was examined as PW-1 and marked Exts.P-1 to P-8 documents. The defence has not adduced any oral evidence. The court below, after meticulously evaluating the oral and documentary evidence on record adduced by the parties, have concurrently found that the revision petitioner has duly executed Ext.P-1 cheque and the defence set up by the accused has been considered and repelled by the courts below. It is in the light of these findings of fact, that the courts below have found concurrently that the petitioner is liable to be convicted for the offence under Sec.138 of the N.I. Act. These findings of facts cannot be said to be perverse or unreasonable and therefore, this Court is of the view that this Court will not be justified to interfere in a matter like this by taking recourse to the revisional powers conferred on this Court. As regards the sentence, it is seen that the appellate court has reduced the substantive sentence to simple imprisonment for 3 months and has ordered compensation of Rs.25,000/- with default sentence clause of 3 months' simple imprisonment. Having regard to the legal principles laid down by the Apex Court as in Damodar S.Prabhu v. Sayed Babalal , reported in AIR 2010 SC 1907 and Kaushalya Devi v. Roopkishore, reported in AIR 2011 ::5:: Crl.R.P.No.67 Of 2003 SC 2566, this Court is inclined to reduce the substantive sentence to simple imprisonment till the rising of the court. However, any such reduction of substantive sentence should be in such a manner to adequately compensate the complainant. Ext.P-1 dishonoured cheque for Rs.25,000/- was issued as early as on 20.3.1996. More than 21 ½ long years have been elapsed after the issuance and dishonour of the cheque. It is reported that the complainant has died and therefore adequate compensation could be paid to the LRs of the deceased original complainant. In these circumstances, this Court would order that the revision petitioner-accused should pay compensation of Rs.50,000/(twice the cheque amount of Rs.25,000/-) as compensation in terms of Sec.357 (3) of the Cr.P.C, which shall be disbursable to the legal representatives of the deceased original complainant. On default of the petitioner to pay the said amount, he will have to undergo simple imprisonment for 2 months. Since the original complainant has died on 3.1.2004, it is ordered in the interest of justice that the Public Prosecutor should ensure that an effective and proper enquiry is conducted by the Tahsildar/competent revenue official of the area concerned, to find out the names and addresses of the widow of the original complainant. If the widow/wife of the original complainant is also no more, then the revenue official shall ascertain the names and ::6:: Crl.R.P.No.67 Of 2003 addresses of the other LRs of the deceased original complainant and details in that regard should be filed before the trial court as a report by the Tahsildar/competent revenue official stating the LRs of the deceased original complainant. The process of enquiry should be completed by the Tahsildar/competent revenue official, without much delay, at any rate, within a period of 2 months from the date of receipt of a copy of his order. PP will ensure that a copy of this order is furnished to the District Collector as well as the Tahsildar/competent revenue official of the area concerned for conducting the above said enquiry. After conducting the enquiry, the competent revenue official concerned/Tahsildar as the case may be, should furnish a report to the Judicial First Class Magistrate Court, Malappuram, who deal with C.C.No.821/1996 as to details of the affected parties, as indicated hereinabove. In case the revenue official intimates the trial court that the widow of the deceased complainant is still living, then the compensation amount in full should be disbursed to the said widow in terms of Sec.357(3) of the Cr.P.C. In case the widow of the deceased original complainant is not alive, then the compensation amount shall be disbursed equally to all the other LRs of the deceased original complainant. ::7:: Crl.R.P.No.67 Of 2003 6. It is seen that this Court as per interim order dated 9.1.2003 in Crl.M.P.No.218/2003 had directed the petitioner to deposit one half of the amount of the cheque amount within 2 months as a condition for suspending the impugned sentence. Learned counsel for the petitioner submits that the petitioner had complied with the said condition. But he is not in a position to produce any receipt in that regard. In the e-mail report dated 28.9.2017 furnished by the trial court to the Registry of this Court, it is stated that only Rs.12,500/- is seen pending in the fine register from 2.7.1998 and at the same time it has been stated that no amount is seen remitted in the fine register in C.c.No.,821/1996. The fine imposed by the trial court was Rs.30,000/and later the same was modified to Rs.25,000/- and it may be that, it is one half of the cheque amount of Rs.25,000/- and that is the reason perhaps it is stated in the report of the trial court that an amount of Rs.12,500/- is seen pending. The details in that regard are not now exactly known to this Court as the petitioner has not furnished necessary factual instructions in that regard to his counsel. The trial court should verify the fine register and the payment records to ensure whether the petitioner has paid an amount of Rs.12,500/- in compliance with this Court's order dated 9.1.2003. If as a matter of fact, the petitioner has indeed made the said payment, then the said ::8:: Crl.R.P.No.67 Of 2003 amount shall be deducted from the total compensation amount of Rs.50,000/- payable by the petitioner and in such eventuality, the petitioner need to pay the balance amount. Accordingly the following orders and directions are issued. - (i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the N.I. Act will stand confirmed. - (ii) The impugned substantive sentence of simple imprisonment will stand reduced to imprisonment till the rising of the court. - (iii) In modification of the orders passed by the courts below, the petitioner shall pay compensation of Rs.50,000/- which shall be disbursed to the LRs of the deceased original complainant in terms of Sec.357(3) of the Cr.P.C. On default of the petitioner to pay the above said amount, he will have to undergo simple imprisonment for 2 months. - (iv) The petitioner is given 4 months' time from 15.10.2017 to remit the compensation amount of Rs.50,000/- before the trial court. In case the petitioner has remitted any amount before the court below, the same should be deducted from the fine amount of Rs.50,000/- and the petitioner need to pay only the balance amount. - (v) The petitioner will appear at 11:00 a.m. on any day on or before 17.2.2018 to receive the sentence of imprisonment till the rising of the court and to remit the compensation amount of Rs.50,000/-. Upon receiving the compensation amount, the trial court will issue necessary notice of intimation to the LRs of the deceased complainant on the basis of the addresses that may be furnished in that regard by the Tahsildar/competent revenue official concerned on the enquiry that is to be conducted as directed hereinabove. - (vi) Until 17.2.2018, all further coercive steps taken against the petitioner in execution of the impugned sentence will stand deferred. ::9:: Crl.R.P.No.67 Of 2003 - (vii) On default of the petitioner either to appear before the court below on 17.2.2018 or to make payment as aforesaid, the trial court will be at liberty to proceed against the petitioner in accordance with law. With these observations and directions, the Crl.R.P stands finally disposed of. Registry will forward a copy of this order the trial court for necessary information. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // true copy // P.A to Judge.