Rajamohan Nair v. Shaji P.S. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939** **Crl.Rev.Pet.No. 1227 of 2010 ( )** **--------------------------------** **CRL.A 1049/2006 OF ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM. ST 598/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, THIRUVANANTHAPURAM.** **......** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **RAJAMOHANAN NAIR SON OF KUTTAPPAN NAIR, T.C.6/381, VIDYA, P.T.P.NAGAR, ANCHAMADA VILLAGE, THIRUVANANTHAPURAM.** ## **PRESENT ADDRESS** **SRI.K.RAJAMOHAN NAIR, S/O.KUTTAPPAN NAIR, KARTHIKA, KATTAKADA.P.O., THIRUVANANTHAPURAM - 695 572.(ADDRESS SHOWN IN THE ORDER DATED 27.3.2017)** ## **BY ADV. SRI.D.SAJEEV** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:** **----------------------------------------------** **1. SHAJI P.S., SON OF SCARIYA, PRIYA BHAVAN, VENGODE, KUNNATHUKAL VILLAGE, PANACHAMMOODU, THIRUVANANTHAPURAM, (FROM PALLIKKUNNEL HOUSE, MAYILAMPARA, THAMARASSERY, KOZHIKODE).** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **R1 BY ADV. SRI.C.J.JOY** - **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ALEXANDER THOMAS, J. ================== Crl.R.P.No. 1227 of 2010 ================== Dated this the 4[th] day of April, 2017 O R D E R The petitioner is the accused in C.C.No.598/2006 on the file of the Judicial First Class Magistrate's Court-VI, Thiruvananthapuram, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1[st] respondent (complainant). The trial court as per the impugned judgment dated 16.10.2006 had convicted the petitioner and had sentenced him to undergo simple imprisonment for one year and to pay fine of Rs. 5,000/with a default sentence of simple imprisonment for one month. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.1049/ 2006 before the appellate Sessions Court concerned (Court of Addl. Sessions Judge, Fast Track Court-I, Thiruvananthapuram). The appellate court as per the impugned appellate judgment dated 8.2.2010 had upheld the conviction and had also confirmed the sentence and thereby dismissed the appeal. It is aggrieved by the said concurrent findings of both the courts below that the revision petitioner accused had preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C. 2. Heard Sri.D.Sajeev, learned counsel appearing for the revision petitioner accused, Sri.C.J.Joy, learned counsel appearing for the 1[st] respondent complainant and Sri.Saigi Jacob Palatty, learned Prosecutor Crl.R.P.1227/10 - : 2 :- appearing for R-2 State. 3. Since the earlier Advocate appearing for the revision petitioner had died, this Court had issued notice directly to the party so as to take up the matter for final hearing and the said notice sent to the revision petitioner with hearing date as 5.12.2015 was returned unserved with the endorsement, “ _no such addressee_ ”. Therefore, this Court was constrained to pass order dated 10.2.2017 vacating the earlier interim order suspending the impugned sentence, etc. Now the revision petitioner accused has entered appearance through his new counsel, Sri.D.Sajeev. Sri.D.Sajeev, counsel has now submitted that the revision petitioner accused has shifted his residence and the matter was duly intimated to his earlier counsel, who has later died and since this fact could not be communicated to the Registry, the notice sent to his earlier address was returned unserved, etc. It is submitted on the basis of the instructions of his party that the present address of the revision petitioner accused is “Sri.K.Rajamohan Nair, S/o.Kuttappan Nair, ' _Karthika_ ', Kattakada P.O., Thiruvananthapuram-695 572. Accordingly, it is ordered that the Registry will show the said address of the revision petitioner also in the cause-title. 4. Further, D.Sajeev, learned counsel appearing for the revision petitioner accused submits on the basis of the instructions of his party that the revision petitioner accused is not challenging the legality and Crl.R.P.1227/10 - : 3 :- correctness of the impugned conviction imposed, but would only urge this Court to modify the impugned substantive sentence of one year to imprisonment till rising of the court and to pay compensation of Rs.10 lakhs, which is the cheque amount and that the revision petitioner accused should be given 6 months' time to pay the abovesaid compensation amount of Rs.10 lakhs to the complainant. In the light of this submission, Sri.C.J.Joy, learned counsel appearing for the 1[st] respondent complainant would submit that in case the petitioner pays the abovesaid compensation amount of Rs.10 lakhs, then the 1[st] respondent will press the execution petition filed in respect of the connected civil decree only for realisation of the interest and cost on the said principal amount of Rs.10 lakhs and that if the compensation amount is paid by the complainant, he will not insist for realisation of the principal amount of Rs.10 lakhs in the abovesaid civil execution proceedings. Further, Sri.C.J.Joy, learned counsel appearing for the 1[st] respondent complainant would submit that this Court should pass necessary protective orders to ensure the timely payment of the compensation amount of Rs.10 lakhs and it should be ordered that in case there is default on the part of the petitioner to pay the said compensation amount of Rs.10 lakhs, then there should be default clause that the accused should suffer simple imprisonment for a period of one year. Sri.D.Sajeev, learned counsel appearing for the revision petitioner accused has no objection to this Crl.R.P.1227/10 - : 4 :- course of action. 5. However, Sri.C.J.Joy, learned counsel appearing for the 1[st] respondent (complainant) raised an apprehension that the accused might again go to some other unknown destination in order to circumvent the execution of the sentence in this case, as it was earlier reported by the Inspector of Police, Kattakkada, that the revision petitioner has not been residing in the locality for quite some time. Further, Sri.D.Sajeev, learned counsel appearing for the revision petitioner accused submitted that the revision petitioner is facing cardiac problems and that he is now residing in his sister's house, which is now owned by sister's son. Accordingly, this Court had passed an order on 27.3.2017 directing the Inspector of Police, Kattakkada, to conduct an inquiry and ascertain whether the revision petitioner is residing in the new address as furnished by his counsel now. The Inspector of Police has now submitted a report dated 4.4.2017 stating that his local inquiry revealed that it is recently that the revision petitioner has shifted his residence to the house owned by his sister's son, etc. Sri.D.Sajeev, learned counsel appearing for the revision petitioner submits on the basis of instructions of his party that the petitioner would undertake that he would certainly make payment of the amounts due to the complainant within 6 months. However, since the whereabouts of the 1[st] respondent was not traceable for quite some time, even to the Police authorities, it is ordered that the Inspector of Police, Crl.R.P.1227/10 - : 5 :- Kattakkada, will ensure that a Police Constable is deputed to the above new address of the revision petitioner twice in a month to ascertain whether the petitioner is residing in that address, etc. Sri.D.Sajeev, learned counsel appearing for the revision petitioner also submits on the basis of the instructions of his party that the petitioner would undertake that he would give advance information to the Inspector of Police, Kattakkada, if he is moving out of the present address for any period exceeding 3 days, until the first week of October, 2017. In the light of this undertaking, the revision petitioner is directed to give advance notice to the Inspector of Police, Kattakkada, if he is moving out of the present address for any period exceeding 3 days, until the first week of October, 2017. 6. It is relevant to note that the Apex Court in the judgment in R.Mohan v. A.K.Vijaya Kumar, reported in (2012) 8 SSC 721, has held that the order to pay compensation may be enforced by awarding sentence of imprisonment in default. It will be profitable to refer to para 29 of the abovesaid judgment in R.Mohan's case reported in (2012) 8 SCC 721, p.729, which reads as follows: “29. The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357(3) compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order directing compensation is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non-observance. The whole purpose of Crl.R.P.1227/10 - : 6 :- giving relief to the complainant under Section 357(3) of the Code would be frustrated if he is driven to take recourse to Section 421 of the Code. Order under Section 357(3) must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 of the Code puts compensation ordered to be paid by the court on a par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 IPC. It is obvious that in view of this, in Vijayan [(2009) 6 SCC 652], this Court stated that the abovementioned provisions enabled the court to impose a sentence in default of payment of compensation and rejected the submission that the recourse can only be had to Section 421 of the Code for enforcing the order of compensation. Pertinently, it was made clear that observations made by this Court in Hari Singh [(1988) 4 SCC 551] are as important today as they were when they were made. The conclusion, therefore, is that the order to pay compensation may be enforced by awarding sentence in default.” ## 7. In the light of of these aspects, the following orders and directions are issued: - (i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the Negotiable Instruments Act in this case will stand confirmed. - (ii) The impugned substantive sentence of one year's simple imprisonment is set aside and the petitioner is sentenced to imprisonment till rising of the court. - (iii) The impugned direction to pay fine of Rs.5,000/- is also set aside and modified by ordering in the light of agreement between the parties that the petitioner should pay compensation amount of Rs.10 lakhs to the 1[st] respondent complainant on or before 7.10.2017 and in default of such payment, the petitioner will have to suffer simple imprisonment for a period of one year. The petitioner is at liberty to pay the said amount directly to the complainant. On receiving such payment, the complainant will issue necessary receipts to the accused so that the accused can produce the same before the trial court to satisfy the said court about payment of the amounts. - (iv) The petitioner shall personally appear at 11 a.m. on 7.10.2017 before the trial court to receive the sentence of imprisonment till rising of the court and to satisfy the trial court about the payment of the compensation amount of Rs. 10 lakhs to the complainant. Crl.R.P.1227/10 - : 7 :- - (v) On default of payment of the said amount as directed above, the petitioner will have to undergo to simple imprisonment for one year. - (vi) All further coercive steps taken for execution of the impugned sentence, more particularly taken for compliance of this Court's interim order dated 10.2.2017 passed on Crl.M.A.No.3716/2010 in this Crl.R.P. will stand deferred. - (vii) After payment of the compensation amount of Rs.10 lakhs, the petitioner will at liberty to produce a certified copy of this order before the civil court, which is dealing with the execution petition in the connected civil decree in regard to the undertakings made on behalf of the 1[st] respondent complainant, who is the plaintiff in the civil suit concerned. - (viii) The revision petitioner shall give advance notice to the Inspector of Police, Kattakada, if he wants to move out of the present new address for a period exceeding 3 days, until the petitioner accused pays the entire agreed amount. - (ix) The Inspector of Police, Kattakada, is also directed to depute a Police Constable to the abovesaid new residence of the petitioner twice in a month until the petitioner accused pays the entire agreed amount, in order to ascertain that the petitioner is residing in the new address. - (x) The Registry to forward copies this order to the trial court as well as the Inspector of Police, Kattakkada. With these observations and directions, the Revision Petition stands finally disposed of. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge