V. Sankaran v. A.P. BaburaJ and State of Kerala represented by Public Prosecutor

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933** **Crl.Rev.Pet.No. 306 of 2004(C)** **-----------------------------CRA.10/2003 of SESSIONS COURT, MANJERI ST.189/2001 of JUDICIAL MAGISTRATE OF FIRST CLASS-II (FOREST OFFENCES), MANJERI** **....................** ## **REVN. PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------** **V.SANKARAN, WATER CARRIER, C.F.NO.2384, ARMED RESERVE POLICE, HEADQUARTER COMPANY, MALAPPURAM.** **BY ADV. SRI.P.S.SREEDHARAN PILLAI** **SRI.C.S.SUNIL** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** **--------------------------------------** **1. A.P.BABURAJ, FITTER HEAD CONSTABLE, ARMED RESERVE POLICE, HEADQUARTER COMPANY, MALAPPURAM.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **ADV. SRI.K.M.SATHYANATHA MENON FOR R1 PUBLIC PROSECUTOR SMT.SEENA R.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON 21/12/2011 PASSED THE FOLLOWING:** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.R.P.NO.306 OF 2004 ----------------------------------Dated this the 21[st] day of December, 2011** ## **O R D E R** Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'Act', concurrently by the two courts below. Sentence imposed against the accused is simple imprisonment for three months with direction to pay fine of Rs.4,000/- with default term of simple imprisonment for one month. Out of the fine amount, if realised, Rs.3,000/- was directed to be paid as compensation to the complainant. Feeling aggrieved, the accused has preferred this revision. 2. The 1[st] respondent receiving the notice entered appearance. His counsel, later, reported that he is no more. Though opportunity was provided to the revision petitioner for impleadment of the legal heirs of the complainant, steps thereof were not taken. The failure of the revision petitioner/accused to **Crl.R.P.No.306/2004** **2** take steps to implead the legal heirs of the complainant, for that reason alone, revision already admitted and received cannot be dismissed. Non-impleadment of the legal heirs of the complainant cannot be given unmerited consideration if the conviction concurrently entered is found to be unsustainable. Further more, this was a case where the 1[st] respondent/complainant after being given notice had already entered appearance, and so much so, if any of his legal heirs were interested in opposing the revision, on any ground whatsoever, they are expected to turn up and resist the revision. 3. The revision arises from a complaint imputing the offence under Section 138 of the Act, which is filed in 2001. After hearing the counsel for the revision petitioner, I have appointed Sri.V.Manu, Advocate, as Amicas Curiae to render assistance to resolve the question whether compensation in lieu of the cheque amount with default term of imprisonment, altering the sentence imposed, in case it is to be affirmed against the accused, can be resorted to in the case which arose from a complaint filed before the amendment to Section 143 of the Act, **Crl.R.P.No.306/2004** **3** as under Act 55 of 2002. So far as the fixation of the quantum of fine by the magistrate the interdiction imposed under Section 29 (2) of the Code of Criminal Procedure applied is not a disputed question in the case. However, whether even in such a case at the stage of revision, alteration of substantive term of imprisonment imposed if challenge against the conviction fails, with such modification limiting the imprisonment but awarding of adequate compensation to the complainant required to be examined, and as such, the above counsel was asked to assist the court to consider the propriety and legality in ordering of such alteration. The above counsel has addressed arguments on that question supporting his submissions with judicial pronouncements applicable thereto. I place on record my appreciation for the valuable assistance rendered by him. 4. Perusing the judgments rendered by the magistrate and also the sessions judge with reference to the submissions made by the counsel for the accused, I find, the conviction entered against the accused concurrently does not suffer from any infirmity warranting interference in exercise of the revisional **Crl.R.P.No.306/2004** **4** jurisdiction by this Court. Both the complainant and the accused were constables attached to A.R.P. Camp, Malappuram and towards the discharge of a loan of Rs.30,000/- availed from him, the accused issued Ext.P1 cheque for the sum, was the case of the complainant. That cheque presented for encashment in due course was dishonoured due to insufficiency of funds in the account of the accused. Notice was given intimating dishonour was responded with a reply (Ext.P5) disputing the transaction, even denying of any acquaintance with the complainant and issuing of the cheque to him towards discharge of a debt or liability. Ext.P1 cheque was one among the two cheques given to another, who stood as a guarantor for collection of the chitties prized by the accused and his son. The cheque was handed over without his signature, and, collecting it from his guarantor and forging signature of the accused it was presented by the complainant, was the case canvassed by the accused. On the materials placed by both sides, the trial magistrate found the case of the complainant reliable, trustworthy and convincing and the defence set up by the accused, unworthy of any merit. The learned sessions judge after re-appraisal of the evidence, has **Crl.R.P.No.306/2004** **5** affirmed the finding of guilt to sustain the conviction imposed against the accused. I find no infirmity, leave alone, any illegality in the conclusion concurrently formed by the two courts below on the proved facts established by the materials produced to found the conviction against the accused. 5. Now considering the question whether the sentence calls for any modification, and if so, can this Court modify the sentence to award compensation to the complainant has to be examined. The accused has been sentenced to undergo simple imprisonment for three months and to pay fine of Rs.4,000/- with default term of simple imprisonment for one month. A portion of the amount fixed as fine has been directed to be paid as compensation to the complainant. The maximum fine that could have been imposed by the magistrate was only Rs.5,000/- at the time when the offence was committed by the accused. Where fine is imposed as part of the sentence, compensation payable has to be limited within the sum ordered as fine and there cannot be any awarding of compensation under Section 357 (3) of the Code, which is applicable only where fine does not form **Crl.R.P.No.306/2004** **6** part of the sentence. In the present case, since substantive term of imprisonment has also been imposed with fine, there is no hurdle in altering the sentence imposed against the accused limiting the substantive term of imprisonment and providing compensation to the complainant in lieu of the cheque amount, after vacating the sentence of fine. In **K.Bhaskaran v. Sankaran Vaidhyan Balan and another ((1999) 7 SCC 510)** , the Apex Court while observing that the sentence of fine that can be imposed for the offence under Section 138 of the Act by a Judicial Magistrate of First Class, before the amendment made under Section 143 of the Act, which came into force only on 06.02.2003, could not exceed Rs.5,000/-, as then in force under Section 29 (2) of the Code, which too has been subsequently raised now to Rs.10,000/-, has made it clear that even in such a case the grievance of the complainant can be redressed resorting to Section 357 (3) of the Code awarding adequate compensation to him. So much so, where the sentence imposed is not of fine alone but includes the substantive term of imprisonment as well, when a challenge against the conviction is made by the accused, and, it fails, sentence imposed against him **Crl.R.P.No.306/2004** **7** can be modified appropriately even directing for compensation to the complainant if it is so found essential to advance the ends of justice. In such a case, the only limitation is that fine, if any, imposed by the inferior court as part of the sentence to the substantive term of imprisonment has to be vacated to award compensation under Section 357 (3) of the Code. Where sentence of substantive term of imprisonment is modified providing compensation, no doubt, default term of imprisonment, which is, in fact, only a mode of recovery for realisation of the sum awarded as compensation can also be resorted to as it cannot be considered as enhancement of the sentence already awarded to the accused. 6. The liability arising on dishonour of a cheque, though made as an offence, is primarily a civil liability. So much so, in the absence of exceptional circumstances, the offender found guilty of the offence under Section 138 of the Act need not be mulcted with punishment to suffer a term of incarceration. Sentence for such an offence should be with an outlook to compensate the complainant than be punitive. Other than that **Crl.R.P.No.306/2004** **8** the accused had set up false defences to resist the prosecution, there is nothing more to warrant the imposition of a prison term against him. So much so, I find, the substantive term of imprisonment imposed against him can be limited and reduced to imprisonment till the rising of the court directing him to pay the compensation to the complainant altering the fine imposed as part of the sentence. 7. Affirming the conviction of the accused, sentence imposed against him is modified as hereunder. Substantive term of imprisonment is reduced and limited to imprisonment till the rising of the court and altering the fine, the accused is directed to pay Rs.30,000/- the cheque amount, under Section 357 (3) of the Code, as compensation to the complainant, with default term of imprisonment for one month. Th accused is directed to appear before the magistrate on 15.01.2012 to serve out the imprisonment till the rising of the court and to report the payment of compensation. The magistrate shall keep in abeyance the execution of the sentence imposed against the accused till the date fixed as above for his appearance, to enable **Crl.R.P.No.306/2004** **9** him to pay the compensation within the above period. In default of his appearance and non-payment of the compensation, the magistrate is directed to execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. ## **S.S.SATHEESACHANDRAN JUDGE** prp **Crl.R.P.No.306/2004 10**