Sree Narayana Traders & Financiers Ltd. v. P.P. Joseph and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 Crl.Rev.Pet.No. 1539 of 2003(C) ------------------------------CC.418/1999 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER/COMPLAINANT -------------------------------------- M/S.SREE NARAYANA TRADERS & FINANCIERS LTD. THAVALATHIL BUILDINGS, PATHANAMTHITTA. REPRESENTED BY ITS MANAGING DIRECTOR, M.K.DIVAKARAN, MINI SADANAM, KUNNAMKARA. PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT/ACCUSED: --------------------------- 1. P.P.JOSEPH, PANACHIKKAL HOUSE, THAZHATHUVADAKARA, VELLAVOOR-686 541. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.M.ABDUL LATHEEF FOR R1 PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **M.C.HARI RANI, J * * * * * * * * * * * *** Crl.R.P.No.1539 of 2003 ---------------------------------------- Dated this the 26[th] day of May 2011 ## **O R D E R** The revision petitioner herein is the complainant in C.C.No.418/99 on the file of learned Chief Judicial Magistrate, Pathanamthitta. The 1[st] respondent herein is the accused. The offence alleged against the accused was under Section 138 of the Negotiable Instruments Act. The impugned judgment was passed by the learned Chief Judicial Magistrate on 09/12/2002 in C.C.No.418/99 whereby the accused was convicted for the offence under Section 138 of the Negotiable Instruments Act and he was sentenced to undergo S.I for two months. The complainant has preferred this revision petition for enhancing the sentence ordered by the learned Chief Judicial Magistrate and to direct the accused/1[st] respondent to pay the cheque amount of Rs.3,50,000/- as compensation to the petitioner/complainant. 2. Heard the learned counsel for the revision petitioner/complainant and the learned Public Prosecutor. Crl.R.P.No.1539/2003 2 3. This Court already directed the learned counsel for the revision petitioner to verify whether any civil suit has been filed in respect of the very same cheque amount and any decree has already been passed. The same has not been furnished and there is no such evidence to show that civil suit was filed to recover the cheque amount. No appeal has been preferred by the accused against the impugned judgment as verified by the office of this Court. 4. The 1[st] respondent herein/the accused faced trial for the offence under Section 138 of the Negotiable Instruments Act. After considering the evidence adduced by the complainant and also the defence, the learned Magistrate found that the complainant has proved the consideration in connection with Ext.P1 cheque and that the accused has not rebutted the presumption available under Section 139 of the N.I.Act and convicted the accused thereunder. The cheque amount involved in the case is Rs.3,50,000/- and the learned Chief Judicial Magistrate concluded that in the interests of justice it may not be conducive to apply the benevolent provisions of the Probation of Offenders Act and therefore a sentence of simple Crl.R.P.No.1539/2003 3 imprisonment for two months would meet the ends of justice and ordered accordingly. It is submitted by the learned counsel for the revision petitioner/complainant that the sentence imposed by the learned Chief Judicial Magistrate is grossly inadequate and atleast the cheque amount should be ordered as compensation in favour of the revision petitioner/complainant. Therefore, it is prayed to modify the sentence imposed by the trial court. 5. For an offence under Section 138 of the N.I.Act, the substantive sentence of imprisonment can be avoided as found by this Court and by the Apex Court in several decisions. To meet the ends of justice, compensation can be awarded in favour of the revision petitioner/complainant under Section 357(3) Cr.P.C. The learned counsel for the revision petitioner relied on the decisions reported in **M.S.Anilkumar v. Shamy [2002(2) KLJ 711]** and **K.Bhaskaran v. Sankaran Vaidhyan Balan [(1999) 7 SCC 510]** to substantiate his contentions. Considering the principles enunciated in the above said decisions and the facts and circumstances of this case and also the finding of guilty and conviction entered against the 1[st] respondent/accused, I find that the conviction for the offence Crl.R.P.No.1539/2003 4 under Section 138 of the Negotiable Instruments Act as found by the lower court against the first respondent/accused can be confirmed. The sentence of simple imprisonment for two months as ordered by the trial court can be modified for imprisonment till rising of court. To meet the ends of justice, the cheque amount of Rs.3,50,000/- can be ordered to pay/deposit as compensation under Section 357(3) Cr.P.C in favour of the revision petitioner/complainant within a period of four months. 5. In the result, a) This revision petition is allowed in part. b) The impugned concurrent verdict of guilty and conviction of the 1[st] respondent/accused under Section 138 of the Negotiable Instruments Act are confirmed. (c) But the substantive sentence imposed is modified and reduced. In supersession of the sentence imposed on the 1[st] respondent/accused by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3) Cr.P.C to pay/deposit Rs.3,50,000/(Rupees three lakhs fifty thousand only) as compensation to the complainant/petitioner within a period of four months and in Crl.R.P.No.1539/2003 5 default to undergo simple imprisonment for a period of three months. The amount if deposited shall be released to the revision petitioner/complainant on proper application. The 1[st] respondent/accused shall have time till 26/09/2011 to pay/deposit Rs.3,50,000/- and thus avoid the default sentence. The 1[st] respondent/accused shall appear and his sureties shall produce him before the learned Magistrate on 27/09/2011 for execution of the sentence. ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge Crl.R.P.No.1539/2003 6 Crl.R.P.No.1539/2003 7 Crl.R.P.No.1539/2003 8 **M.C.HARI RANI, J** Crl.R.P.No.504 of 2001 ORDER Crl.R.P.No.1539/2003 9 17[th] DAY OF JUNE 2001 Crl.R.P.No.1539/2003 10