High Court of KeralaSingle Judge2011-12-21Revision disposed of; conviction affirmed; sent...

Shameema v Abdul Salam N.V. and State of Kerala

Case / Petition Number:CRRP.No.2967 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S.S. Satheesachandran
Judgment Date: 2011-12-21
Court Decision / Holding: Conviction upheld; but the substantive term of imprisonment is reduced to 'imprisonment till the rising of the court' and the compensation is altered to a fine of Rs. 15,000 with a default term of one month. The petitioner is given one month to pay the fine, to appear on 07.02.2012 to serve the sentence till rising of the court, and the execution is kept in abeyance till that date. The magistrate is directed to keep the execution in abeyance; if the accused fails to appear or pay the fine, the sentence may be executed. Revision disposed of as indicated.
Final Disposition: Revision disposed of; conviction affirmed; sentence modified.

Parties to the Case

Appellants / Petitioners

Shameema

Respondents

Abdul Salam N.V.
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• M. Asokan
• Devaprasanth P.J.

Counsels for Respondents

• Anwar Sadath Vadakkengara
• T.R. Rajesh

Case Synopsis & Summary

Shameema, the accused in a cheque issued under Section 138 of the Negotiable Instruments Act, challenges her conviction and the accompanying sentence in a criminal revision filed against the orders of the courts below. The trial and appellate courts had convicted Shameema for issuing a cheque of Rs.3 lakhs and had imposed simple imprisonment for one month along with a direction to pay Rs.3 lakhs as compensation to the complainant, with a default term of imprisonment. The revision was admitted belatedly (delay of 992 days) but was condoned after notice to the complainant; both sides indicated that the matter had been settled. The complainant swore that the entire liability under the dishonoured cheque had been discharged by payment. The petitioner’s counsel urged that given the settlement and discharge, the conviction should be set aside, though no composition petition under Section 147 was filed. The respondents argued that settlement alone cannot erase a conviction, unless a composition under Section 147 is filed. The High Court reiterates that a mere settlement cannot automatically nullify conviction, but may influence sentencing in light of a SC directive in Damodhar S. Prabhu v. Sayed Babalal. Consequently, while affirming the conviction, the court modulated the sentence: imprisonment till rising of the court and a fine of Rs.15,000 (with a one-month grace period to pay), instead of the earlier Rs.3 lakhs compensation, and directed appearance to serve the sentence till rising of the court, with execution kept in abeyance pending payment. The revision is disposed of accordingly, balancing the settlement with the maintainability of the conviction.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 147 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

Damodhar S. Prabhu v. Sayed Babalal, 2010 (2) KLT 587 (SC) — acceptance and recognition of composition for an offence under Section 138 NI Act
Settlement/discharge of liability under Section 138 NI Act can influence sentencing; courts may modulate sentence in light of settlement, including imposing fines instead of imprisonment.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that since the complainant discharged the entire liability by payment following settlement, the conviction under Section 138 NI Act should be set aside. No composition petition under Section 147 was moved. Settlement cannot by itself wipe out the conviction; however, guided by the Supreme Court's Damodhar S. Prabhu v. Sayed Babalal, the court may consider mitigating the sentence in light of settlement while maintaining the conviction.

Contentions of Respondents

The respondents argued that settlement does not automatically invalidate the conviction unless a composition petition under Section 147 is filed; the court should not overturn the conviction on mere settlement; the petition was belated and the case must be decided on merits; the liability remains under the statutory regime.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Damodhar S. Prabhu v. Sayed Babalal	2010 (2) KLT 587 (SC)	Positive	Court relies on the Supreme Court's directions to accept and recognise composition under Section 138 NI Act, guiding the use of settlement to modulate sentencing.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 21ST DAY OF DECEMBER 2011/30TH AGRAHAYANA 1933** ## **CRRP.No. 2967 of 2011 ( )** **-----------------------CRA.528/2007 OF ADDL. DISTRICT & SESSIONS COURT, FAST TRACK (ADHOC-II), KOZHIKODE ST.818/2006 OF SPL.JUDICIAL FIRST CLASS MAGISTRATE COURT (MARAD CASES), KOZHIKODE** **-------------------------------** **PETITIONER / APPELLANT / ACCUSED :** **---------------------------------------------------------** **SHAMEEMA, W/O. NASAR, THAIVACHA PARAMBIL HOUSE, NADAPURAM, KALLACHI P.O.** **BY ADVS. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J.** ## **RESPONDENT / RESPONDENT / COMPLAINANT AND STATE :** **---------------------------------------------------------------------------------------** **1. ABDUL SALAM N.V., S/O. MOIDEEN KOYA HAJI, 'VAZHAYIL HOUSE', KINASSERY, KOZHIKODE.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA** **R1 BY ADV. SRI. ANWAR SADATH VADAKKENGARA R2 BY PUBLIC PROSECUTOR SRI. T.R. RAJESH** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** ## **CRRP.No. 2967 of 2011 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURE'S** **ANNEXURE - I : AFFIDAVIT FILED BY THE FIRST RESPONDENT. RESPONDENT'S ANNEXURE'S - NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **S.S.SATHEESACHANDRAN, J.** **----------------------------------------------Crl.R.P.No.2967 of 2011 ----------------------------------------------Dated this the 21[st ] day of December, 2011** ## **O R D E R** Petitioner is the accused in a cheque case. Conviction of the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}, by both the courts below is assailed in this revision, which was belatedly filed with a petition to condone delay of 992 days. Delay was condoned, after giving notice to the 1[st] respondent/complainant, and, later, on the representation made by both sides that the parties have settled the matter. 2. The revision coming up for consideration today, relying on an affidavit sworn to by the 1[st] respondent/complainant that the entire liability under the dishonoured cheque had been discharged by payment, the ## **Crl.R.P.No.2967 of 2011** ## **:: 2 ::** learned counsel for the accused seeks setting aside of the conviction. No request for composition of the offence, as provided under Section 147 of the Act has been moved in the revision. Settlement effected by the parties, that alone, cannot be given any consideration, to relieve the convicted accused from the punishment imposed, that too where such conviction stands confirmed by the dismissal of his appeal as well. Probably, no composition petition has been filed to avoid payment of costs to the Legal Services Authority, which, necessarily, has to be fixed in view of the directions given by the Apex Court in Damodhar S. Prabhu v. Sayed Babalal {2010 (2) KLT 587 (SC)} to accept and recognise the composition made for an offence under Section 138 of the Act. However, the affidavit filed by the complainant ## **Crl.R.P.No.2967 of 2011** ## **:: 3 ::** and the submission made by his counsel that the entire liability under the dishonoured cheque, which gave rise to the prosecution and conviction of the accused, has been discharged by payment, has to be taken note of in modulating the sentence passed against the accused. Cheque amount involved in the case is Rs.3 lakhs. Sentence imposed against the accused, as affirmed by the Sessions Judge in appeal, is simple imprisonment for one month with a direction to pay compensation of Rs.3 lakhs, the cheque amount, to the complainant with the default term of simple imprisonment for one month. 3. In view of the settlement effect with the complainant by payment of the sum covered by the cheque, the substantive term of imprisonment imposed against the accused can ## **Crl.R.P.No.2967 of 2011** **:: 4 ::** be reduced to imprisonment till the rising the court, altering compensation to one of fine. Petitioner/accused has to pay the fine, as fixed hereunder, as part of the punishment, though a settlement has been effected with the complainant. 4. Affirming the conviction, the sentence imposed against the petitioner is modified and reduced to imprisonment till the rising of the court, with direction to pay fine of Rs.15,000/with default term of simple imprisonment for one month. Petitioner is granted one month's time from today to pay the amount fixed as fine, to avoid the default term of imprisonment. Petitioner is directed to appear before the magistrate on 07.02.2012 to serve out the imprisonment till the rising of the court, and to report the payment of the fine. The magistrate ## **Crl.R.P.No.2967 of 2011** ## **:: 5 ::** is directed to keep in abeyance the execution of the sentence till the date fixed for his appearance. In default of his appearance and non-payment of the fine, the magistrate shall execute the sentence, taking appropriate steps, in accordance with law. Revision is disposed of as indicated above. Sd/(S.S.SATHEESACHANDRAN) JUDGE sk/- ## //true copy// P.S. to Judge.