Sree Gokulam Chit & Finance Co. (P) Ltd., Kannur v. Sheeja Das and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 24TH DAY OF NOVEMBER 2014/3RD AGRAHAYANA, 1936** **Crl.Rev.Pet.No. 1967 of 2014 ( )** **---------------------------------** ## **AGAINST THE JUDGMENT IN CRA 339/2002 of COURT OF SESSIONS, THALASSERY DATED 21-08-2007** **AGAINST THE JUDGMENT IN CC 789/2002 of J.M.F.C.-I, KANNUR DATED 12-07-2002** **------------------** ## **REVISION PETITIONER/1ST RESPONDNT/COMPLAINANT:** **--------------------------------------------** **SREE GOKULAM CHIT & FINANCE CO.(P) LTD., KANNUR, REP. BY ITS ASST. ARREARS MANAGER, K.RAJAN AS POWER OF ATTORNEY HOLDER.** **BY ADVS.SRI.K.S.BABU SMT.N.SUDHA** ## **RESPONDENTS/APPELLANT & 2ND RESPONDENT/ACCUSED & STATE:** **----------------------------** **1. SHEEJA DAS, W/O.GURUDASAN M., RESIDING AT MADHAVI NIVASE, P.O. KADACHIRA, KANNUR DISTRICT.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR, SMT.SEENA RAMAKRISHNAN R-R1 BY ADV. SRI.SUNIL NAIR PALAKKAT R-R1 BY ADV. SRI.K.N.ABHILASH** ## **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD** **ON 24-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.RAMAKRISHNAN, J. -------------------------------------Crl.R.P.No.1967 OF 2014 -------------------------------------Dated this the 24[th] day of November, 2014** ## **O R D E R ~~~~~~~** The complainant in C.C.No.789/2002 on the file of the Judicial First Class Magistrate Court-I, Kannur is the revision petitioner herein. 2. The case was taken on file on the basis of a private complaint filed by the revision petitioner against the 1[st] respondent alleging commission of the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). After trial, the trial court found the 1[st] accused guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for six months and also to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for one month more. The 1[st] respondent filed Crl.A.No.339/2002 before the Sessions Court,Thalassery, which was made over to Additional Sessions Court, Adhoc-III, Thalassery for disposal. The learned Additional Sessions Judge by the impugned judgment allowed the appeal in part confirming the order of conviction and also fine imposed, Crl.R.P.No.1967/2014 2 but, modified the substantive sentence to imprisonment till the rising of court. This part of the judgment of the appellate court is being challenged by the revision petitioner, complainant in the lower court, by filing this revision. 3. Since the respondent had appeared, this Court felt that the revision can be admitted and can be disposed of on merits. So, the revision is admitted and heard and disposed of on merit today itself, considering the fact that the revision was filed in the year 2008 with delay condonation application but that delay was condoned only recently. 4. The learned counsel for the revision petitioner submitted that the court below did not grant compensation on the ground that the civil suit has been decreed and execution petition has been filed. But that execution petition was later dismissed as the amount could not be realised from the 1[st] respondent. Further, when the substantive sentence is reduced court below should have awarded compensation with liberty to adjust this amount towards the decree amount if any passed in a civil suit invoking the power under Section 357 (3) and (5) of the Code of Criminal Procedure. The learned counsel appearing for Crl.R.P.No.1967/2014 3 the revision petitioner also relied on the decision reported in **Radhakrishnan Nair v. Padmanabhan** [2000(2) KLT 349] in support of her case. 5. The learned counsel for the 1[st] respondent submitted that the court below was perfectly justified in not granting compensation as in Section 138 case, compensation will be awarded only from out of fine and during that time court has got power only to impose fine of Rs.5,000/- and so court below was perfectly justified in restricting the punishment to fine with substantive sentence of imprisonment till rising of court. 6. It is an admitted fact that the revision petitioner filed a private complaint under Section 138 of the Act against the 1[st] respondent on the basis of a cheque for Rs.1,89,923/-, which was said to have been issued by the 1[st] respondent in discharge of the amounts due under 10 chitty transactions. The trial court found the 1[st] respondent guilty under Section 138 of the Act and convicted her thereunder and sentenced her to undergo simple imprisonment for six months and also to pay a fine of Rs.5000/in default to undergo simple imprisonment for one month. The appellate court in Crl.A.339/2002 filed by the 1[st] respondent Crl.R.P.No.1967/2014 4 confirmed the order of conviction and fine imposed but reduced the substantive sentence to imprisonment till rising of court and also default sentence of fine for 15 days. This is being challenged by the revision petitioner. 7. In the decision reported in **Radhakrishnan Nair v. Padmanabhan** [2000(2) KLT 349], the learned Single Judge of this Court has held that in the case of offence under Section 138 of the Act the appellate court has the power to modify the fine and convert the same into compensation to the tune of the cheque amount with default sentence, because, the court has no power to impose fine more that Rs.5000/- as the law stood at that time. It is only by virtue of amendment Act of 55/2002 which came into effect on 6.2.2003. Section 142 of the Act was amended giving power to the Magistrate to award more punishment provided under Sections 142 and 143 more than what is provided under the Code of Criminal Procedure by adding a non- obstandi clause. So, till then, the Magistrate will be having only power to impose fine of Rs.5,000/-. But, by virtue of the decision in Radhakrishnan Nair (supra), courts were given power to award compensation. Further, in the decision reported Crl.R.P.No.1967/2014 5 in **Suganthi v. Jagadeesan** [2002(1) KLT 581], the Supreme Court has held that though as on that day First class Magistrate is having only power to impose fine of Rs.5,000, that will not fetter the right of the Magistrate to award compensation more than Rs.5,000 with default sentence. 8. Further it is settled law that the offences under Section 138 of the Negotiable Instruments Act were basically of civil nature, but criminal colour has been given to the same by virtue of introducing the Section in the Negotiable Instruments Act and the purpose of the legislative intention to make the same as a criminal offence is not send the drawer of the cheque to jail, but to make him to pay the amount to the payee of the cheque and, only if, he did not pay the amount even after giving an opportunity, then only he need be sent to jail. 9. In this case, when the substantive sentence has been reduced to a meager minimum in order to compensate the same so as to do justice to the complainant, the appellate court should have converted the fine into compensation as has been done in **Radhakrishnan Nair's** case (supra) which view has been supported as the law stood then in **Suganthi's** case (supra). So, Crl.R.P.No.1967/2014 6 under the circumstances, the court below was not justified in confining the sentence to till rising of the court and fine of Rs.5,000/- with default sentence of 15 days. On the other hand, when the substantive sentence was reduced to bare minimum, then the fine ought to have been converted to compensation to the tune of cheque amount with default sentence and that should have been granted to the revision petitioner. So, the sentence modified by the appellate court in Crl.A.339/2002 is further modified as follows: The revision petitioner is sentenced to undergo imprisonment till rising of court and also to pay the cheque amount of Rs.1,89,923/- as compensation to the complaint in default to undergo simple imprisonment for two months under Section 357(3) of the Code. If this amount is realised, then the same shall be adjusted towards the decree amount, if any, obtained by the revision petitioner against the 1[st] respondent by filing a civil suit on the basis of a cheque as provided under Section 357(5) of the Code. However, considering the amount, six months time is granted to the revision petitioner to pay the amount. So, revision petitioner is granted time till 24.5.2015 to Crl.R.P.No.1967/2014 7 pay the amount. Till then, the execution of sentence is directed to be kept in abeyance. With the above modification of sentence, this Revision Petition is allowed in part. Office is directed to communicate a copy of this order to the concerned court immediately. **Sd/K.RAMAKRISHNAN, JUDGE.** ps/25/11/2014 //True copy// PA to Judge