IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.K.MOHANAN
THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930
Crl.MC.No. 465 of 2005()
-----------------------CRRP.75/2001 of III ADDL.SESSIONS COURT, ERNAKULAM CC.105/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA
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PETITIONER: REVISION PETITIONER-COMPLAINANT:
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T.P.NARAYANAN NAIR, THATTARKUDIYIL VEEDU, CHERUVATTOOR KARA, ERAMALLOOR, KOTHAMANGALAM.
BY ADV. SRI.E.SUBRAMANI (SR.) SRI.S.EASWARAN
RESPONDENTS: RESPONDENTS-ACCUSED:
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1. N.C.BHAVANI,
SWEEPER, K.S.R.T.C., KOTHAMANGALAM.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R2 BY PUBLIC PROSECUTOR SRI C.M. KAMMAPPU.
R1 BY ADV. SRI.D.PREM KAMATH FOR R1
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ON 05/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **V.K.MOHANAN, J.**
---------------------------------------------CRL.M.C. No.465 of 2005 ---------------------------------------------Dated, 4[th] June, 2008.
## ORDER
This petition is preferred by the complainant in C.C.No.105/1997, on the file of the Judicial First Class Magistrate Court-I, Muvattupuzha which is instituted upon a private complaint for the offence punishable under section 138 of the Negotiable Instruments Act. Having dissatisfied with the sentence awarded by the trial court as well as the Sessions court in revision, the petitioner approached this Court with a prayer to declare that the accused/Ist respondent is liable to pay the petitioner the amount double the cheque amount and also challenging the judgments of the courts below to the extent of non-awarding of sufficient punishment and compensation.
2. The petitioner who is the complainant preferred the complaint before the trial court alleging that the Ist respondent/accused borrowed a sum of Rs.40,000/- from him and towards the discharge of that liability, the Ist respondent/accused who is a lady had issued Ext.P1 cheque for Rs.40,000/- and when the same was presented for encashment, it was returned as
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dishonoured for want of sufficient fund in the account of the accused. The complainant though sent statutory notice which was accepted by the accused but sent a reply stating falsehood and the amount was not paid and hence he preferred the complaint. The trial court took cognizance upon the complaint on the basis of which C.C.No.105/1997 was instituted and during the trial of the case PW-1 was examined and Ext.P1 to P9 were marked. Finally, the trial court found that the Ist respondent/accused is guilty of the offence under section 138 of the N.I.Act and accordingly, she was convicted and sentenced to pay a fine of Rs.5000/- and in default of payment of fine to undergo simple imprisonment for one month. It was also ordered that out of the fine amount, Rs.3000/- shall be paid as compensation to PW-1, the petitioner herein.
3. Challenging the above order of sentence, the petitioner herein preferred Crl.R.P. No.75 of 2001 before the III Addl. District and Sessions Court, Ernakulam. By the judgment dated 17[th] March, 2004, the III Addl.Sessions Judge,
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Ernakulam, dismissed the Crl.R.P. holding that if the prayer of the revision petitioner is allowed, it will amount to enhancement of the sentence for which a Revision under Section 397 of Cr.P.C. cannot be invoked. Thus according to the lower revisional court, the judgment of the trial court is proper, legal and correct with respect to the awarding of the sentence. The revisional Court also found that the Ist respondent/accused is a lady aged 49 and is a Sweeper by profession in the K.S.R.T.C. While approving the above finding of the trial court, the revisional court has said that there is a civil case filed by the complainant to realise the amount and hence, no compensation was awarded by the lower court under section 357 (3) Cr.P.C. So according to the revisional court, the trial court is perfectly justified in not imposing sentence of imprisonment and not awarding compensation. It is the above finding of the lower revisional court as well as the trial court being challenged in this petition under section 482 of Cr.P.C.
4. I have heard the counsel appearing for the petitioner
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as well as the Ist respondent.
5. As stated earlier, the petitioner who is the complainant preferred this petition before this court under Section 482 of the Cr.P.C. challenging the orders of the trial court as well as the revisional court to the extent it does not award compensation under section 357(3) of Cr.P.C. and not awarding double the cheque amount as envisaged by section 138 of the N.I.Act. I have perused the judgments of both the courts below and also the materials available on records. It has to be noted that upon the proceedings initiated by the petitioner/complainant, the Ist respondent was already convicted and a fine of Rs.5000/- was awarded against her as sentence. The specific case of the petitioner is that though the cheque in question was for an amount of Rs.40,000/-, he is no way compensated. In support of his plea, the petitioner very much relied on the decision of the Supreme Court in **Hari Krishnan & State of Haryana v. Sukhbir Singh** (AIR 1988 SC 2127) and also the decision of this Court in **Anilkumar v. Shammy** (2002(3) KLT 852).
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6. Per contra, the counsel for the Ist respondent/accused submitted that both the trial court as well as the revisional court are perfectly justified in not awarding compensation under section 357(3) of Cr.P.C., in the light of the fact that the accused who is a lady at the age of 49 and that she is a sweeper by profession in the KSRTC. It is also submitted by the counsel for the petitioner that as held by the Sessions court, no revision will lie at the instance of the complainant against the sentence awarded against the accused/Ist respondent.
7. During the course of argument, in reply to the question put by the court, the learned counsel for the petitioner submitted that a civil suit which mentioned in Annexure A2 order of the Sessions Court i.e., O.S. No.527/98 which was pending before the Subordinate Judge's court Muvattupuzha was decreed on 6-7-2001 by which it was declared that the petitioner was entitled to realise a sum of Rs.30,000/- from the defendant therein who is the Ist respondent/accused herein.
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8. On a bare reading of Section 138 of the Negotiable Instruments Act, it can be seen that on conviction, discretion is granted to the trial court to impose either sentence or fine or both. If the court choses to impose both, there also limitation, i.e., the maximum imprisonment that can be awarded is 2 years and the maximum fine amount cannot exceed double the cheque amount. So it is clear that even if the sentence is by way of fine, a discretion is given to the trial court in fixing the fine amount and at any rate such penalty shall not exceed double the cheque amount. As far as compensation under section 357(3) is concerned, it is also a discretionary power and it is not mandatory. As borne out from the judgments of the courts below, after having considered the particular facts and circumstances involved in the case, the trial court in exercise of its discretion decided to impose only a fine of Rs.5000/- which approved by the revisional court. Hence this court will not be justified in interfering under section 482 of Cr.P.C. with those sentence imposed by the courts below.
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9. In the light of the above facts, I am of the view that the main grievance of the petitioner that no amount is ordered as compensation seems to be redressed as the civil court has already passed a decree in favour of the petitioner and against the accused. In view of the above facts, I am of the view that this Court will not be justified in interfering under section 482 with the concurrent finding of the trial court as well as the revisional court regarding the sentence, while exercising its discretion.
In the result, there is no merit in the Crl.M.C. and the same is accordingly dismissed.
V.K.MOHANAN, JUDGE
kvm/-
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