Kerala High Court
G.Vasanthakumari vs Abitha P on 22 November, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 22ND DAY OF NOVEMBER 2017/1ST AGRAHAYANA, 1939
Crl.Rev.Pet.No. 3770 of 2010
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CRA 952/2007 OF SESSIONS COURT, TRIVANDRUM
ST 45/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VII, TRIVANDRUM
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REVISION PETITIONER/RESPONDENT/COMPLAINANT:
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G.VASANTHAKUMARI,
RESIDING AT CHAITHANYA, KARUMOM P.O,
THIRUVANANTHAPURAM.
BY ADV. SRI.S.KRISHNAMOORTHY
RESPONDENT(S)/APPELLANT/ACCUSED:
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1. ABITHA P,
RESIDING AT SUNIL NIVAS,
NARIAMPARA, KATTAPANA, IDUKKI DISTRICT. 685 508
2. STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA. 682032.
R1 BY ADV. SRI.R.RAJASEKHARAN PILLAI
R2 BY PUBLIC PROSECUTOR SRI SAIJI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 22-11-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
K.V.
'C.R.'
ALEXANDER THOMAS, J.
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Crl.RP No.3770 of 2010
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Dated this the 22nd day of November, 2017.
O R D E R
The petitioner is the complainant in ST No.849/2005 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram alleging offence punishable under Section 138 of the Negotiable Instruments Act in which the 1st respondent herein has been arrayed as accused therein.
2. Ext.P1 dishonoured cheque dated 15.2.2005 is for Rs.2,00,000/-. The trial court as per the judgment rendered on 24.10.2007 has convicted the 1st respondent herein for the above said offence and has sentenced her to undergo simple imprisonment for a period of three months and to pay a fine of Rs.15,000/- which is disbursable as compensation to the complainant in terms of Section 357 (1)(b) of the Code of Criminal Procedure, and in default thereof to undergo simple imprisonment for a period of two months. The trial court refused to award the cheque amount of Rs.2,00,000/- as compensation in terms of Section 357(3) of the Code of Criminal Procedure, in view of the decision of the Apex Court in the case in Dilip v. Kotak Mahindra Company Ltd., reported in 2007(2) KLT 488 Crl.RP 3770/10 -2- (SC). To impugn the conviction and sentence, the accused had preferred Criminal Appeal No.952/2007 before the appellate sessions court concerned (Court of Sessions Judge, Thiruvananthapuram). The appellate court as per the judgment rendered on 20.7.2010 has confirmed the conviction and modified the substantive sentence of three months simple imprisonment by reducing the same to imprisonment till the rising of the court and also confirmed the fine amount of Rs.15,000/- with the default sentence clause of two months simple imprisonment. The petitioner (complainant) has preferred the instant revision petition challenging the judgment of the appellate court to the extent it has reduced the substantive sentence to imprisonment till the rising of the court, instead of three months' simple imprisonment, and also praying for enhancing the fine/compensation amount.
3. Heard Sri.S.Krishnamoorthy, learned counsel appearing for the revision petitioner (complainant), Sri.R.Rajasekharan Pillai, learned counsel appearing for R-1 (accused) and Sri.Saigi Jacob Paletty, learned Prosecutor appearing for R-2 State.
4. Pursuant to the directions issued by this Court, the trial court concerned (Judicial I Class Magistrate Court-VII, Thiruvananthapuram) has furnished report dated 12.10.2017 addressed Crl.RP 3770/10 -3- to the Registry of this Court, wherein it has been stated that on verification of the case records it is seen that the accused had remitted the fine amount of Rs.15,000/- before the trial court on 22.9.2010. It is not in dispute that the accused has already undergone the substantive sentence of imprisonment till the rising of the court as per the modified order of the appellate court.
5. The main contention urged by Sri.S.Krishnamoorthy, learned counsel appearing for the revision petitioner (complainant) is to the effect that the appellate court was seriously erred in reducing the substantive sentence of three months' simple imprisonment to imprisonment till the rising of the court and in not enhancing the compensation amount.
6. The Apex Court in the decisions in Damodar S.Prabhu v. Sayed Babalal, reported in AIR (2010) SC 1907 and in Kausalya Devi Massand v. Roopkishore, reported in AIR (2011) SC 2566 etc. has held that the offence of dishonour of cheque as conceived in Section 138 of the NI Act, is essentially a civil wrong, which has been given criminal overtones by the legislative intervention by the amendments made to the provisions of the NI Act and the gravity of such an offence cannot be equated with an offence under the provisions of the Indian Crl.RP 3770/10 -4- Penal Code and that ordinarily an appropriate sentence of fine disbursable as compensation would meet the ends of justice. Therefore, unless there are extraordinary circumstances, which warrant the imposition of a substantive sentence, sentence of fine would be sufficient to meet the ends of justice. Therefore, the appellate court cannot be said to have committed illegality and impropriety in reducing the substantive sentence of simple imprisonment for three months to imprisonment till the rising of the court. The said contention of the revision petitioner thus stands overruled.
7. As regards the plea made by the petitioner (complainant) for enhancement of compensation, it is relevant to note that the trial court had rendered the judgment as early as on 24.10.2007, whereby the trial court specifically held that the fine amount imposed in this case is only Rs.15,000/- and that the said court was not inclined to award the cheque amount of Rs.2,00,000/- as compensation under Section 357(3) of the Cr.PC, in view of the decision of the Apex Court in Dilip v. Kotak Mahindra Co.Ltd., reported in 2007 (2) KLT 488, etc. Therefore, if the complainant had any grievance in that regard, she should have challenged the same by filing a revision before the Sessions Court under Section 397 of the Cr.PC, so as to make her plea that the fine/compensation Crl.RP 3770/10 -5- amount is to be enhanced so as to cover the cheque amount etc. In such a case, the revision so filed by the complainant would have been heard along with the criminal appeal filed by the accused. Such a course of action was not taken by the complainant for reasons best known to that party. True that non-institution of a revision at that stage by itself will not preclude the statutory right of the petitioner to file a revision before this Court, after the conclusion of the appellate process. However, suffice to say that since the fine/compensation amount was essentially fixed by the trial court, ordinarily the complainant should have challenged the same before the Sessions Court, if she had any grievance, by filing a revision as mentioned hereinabove.
8. When the matter was taken up for consideration on previous occasions, Sri.R.Rajasekharan Pillai, learned counsel appearing for R-1 (accused) had submitted that the accused is a lady in her sixties and that she is only a coolie and she has no means of livelihood, except a meagre income that she gets through her coolie work, which is not on a regular basis, and that it is absolutely impossible for her to raise any further amount if the fine/compensation amount is enhanced, and that as a law abiding person, she had duly challenged the conviction before the appellate court and pursuant to the appellate court judgment, she had suffered the substantive sentence of imprisonment till the rising of the court and had Crl.RP 3770/10 -6- also remitted the fine amount of Rs.15,000/- as early as on 22.9.2010 and that this Court may not exercise its discretion at this long distance of time, as otherwise, she is not in a position to pay any further money. In order to ascertain the correctness of the above said factual submissions made on behalf of the R-1 (accused), this Court had passed an order dated 31.10.2017 directing the Public Prosecutor to ensure that an enquiry is conducted by the Village Officer of the area concerned, so as to ascertain the financial condition and income level of R-1 (accused). The said order dated 31.10.2017 reads as follows:-
"Sri.R.Rajasekharan Pillai, learned counsel appearing for R-1 (accused) submits that R-1 (accused) is a widow in her fifties and is a maid servant/domestic help, and her son is only a coolie and that she has no financial means to pay any enhanced compensation and that this Court may ascertain the correctness of these facts through the competent Revenue officials concerned. Accordingly, it is ordered that the Village Officer of the area concerned, where R-1 resides at Nariampara, Kattapana, Idukki District, shall conduct a proper and effective enquiry to find out the financial conditions of R-1 and also about her avocation and rough monthly and annual income and also about the financial condition of her son and other members of her family. A report in this regard shall be submitted by the Village Officer concerned through the Public Prosecutor appearing in this case within a period of two weeks from the date of receipt of a copy of this order. The learned Prosecutor shall communicate a copy of this order to the Village Officer concerned through the Liaison Officer of the Revenue Department attached to the Office of the Advocate General for immediate compliance."
In compliance with the directions of this Court dated 31.10.2017, the learned Public Prosecutor has filed memo dated 17.11.2017 producing Crl.RP 3770/10 -7- therewith a report dated 15.11.2017 of the Village Officer of Kanchiyar Village, which is addressed to the Prosecutor, and the same reads as follows:-
"As per your request I enquired the matter and revealed that a person named Aabitha P., Sunil Nivas, Nariyampara, Kanchiyar is not residing at Nariyampara in the above said address. But a person named Sunil Kumar.V., S/o.Viswambharan, Sunil Nivas, Nariyampara is residing in house No.VIII/59 of Kanchiyar Grama Panchayath along with his family. The said Aabitha. P. is also residing in the house of Sunilkumar now. It is learnt that Radhamani is the mother of Sunil Kumar and heard that she is also known as Aabitha.P., she doesn't have any valid legal documents like Aadhar Card, Election ID Card etc. in the name of Aabitha.P., She is earning her livelihood by doing coolie labour and thozhilurappu in the neighbourhood. From the coolie labour she is earning an approximate monthly income of Rs.4,000/- and annual income of Rs.48,000/- She has no landed properties in Kanchiyar village. Her son Sunilkumar is the title holder in possession and enjoyment of 0.12.00 hectors (30 cent) of patta land in Kanchiyar Village. The said Sunil Kumar is improving the said land with various crops and is doing coolie labour also. Mr.Sunilkumar has wife and 3 daughters with him. His annual income is about Rs.60,000/-. That is Rs.48,000/- from his coolie labour and Rs.12,000/- from his patta land. The approximate value of the said patta land is Rs.10 lakhs. It is also heard that Aabitha was an accused in a cheque case ST 45/06 a J.F.M Court in Thiruvananthapuram."
The said report of the Village Officer discloses that the accused has no residence of her own and that she is now constrained to live in the residence of her son and his family and that the accused does not even have documents like Aadhar card, Election ID card etc. and that she is earning for her livelihood by doing coolie work and `thozhilurappu' (rural employment guarantee scheme) in the neighbourhood and that as Crl.RP 3770/10 -8- a coolie labour, she is hardly earing monthly income of Rs.4,000/- and an annual income of Rs.48,000/- and she has no landed properties in Kanchiyar Village. It appears that her son, Sunil Kumar, is having some property and he has to supporting his wife and three daughters and his annual income is hardly about Rs.60,000/- etc. Therefore, the said report of the Revenue authorities makes it clear that R-1 (accused) is having a very meagre income and that too through irregular source of work as a coolie worker and that she has no landed property in her name. Therefore, the said factual submission made on behalf of the accused appears to be correct and tenable. In the light of these factual aspects, this Court is of the considered opinion that there is no point in enhancing compensation in this case as it will be virtually impossible for the accused to pay off the amounts.
9. Sri.S.Krishnamoorthy, learned counsel appearing for the petitioner (complainant) has strongly urged that this Court should enhance the compensation, taking into consideration the legal principles laid down by the Apex Court in the decision in Vijayan v. Baby, reported in 2012(1) SCC 260, wherein it has been held that in a case involving an offence punishable under Section 138 of the NI Act, the criminal court could award not only the compensation comprising of the Crl.RP 3770/10 -9- cheque amount, but also 9% interest thereon from the date of the cheque up to date of actual payment etc. There is no quarrel with that proposition. The criminal courts as well as this Court sitting in revision will also have to weigh the pros and cons of an individual case and find out whether it would be just and equitable to impose higher compensation amount, and if it is found that enhancement of such a compensation would result, inevitably, in inequity inasmuch as it may be virtually impossible for the accused to pay off the amounts, then the obligation is also cast on the criminal courts, including on this Court sitting in revision to take an appropriate just and fair decision in the matter, taking into consideration the financial condition and the paying capacity of the accused as well, especially in a case like this, where the accused is a lady in her sixties, who is having irregular source of income as a coolie worker etc. Even if a higher compensation amount is fixed by this Court, ultimately it may have to be recovered by taking recourse to the proceedings contained in Sections 421 and 431 of the Cr.PC and ultimately, the recovery steps will have to be effected by the Revenue officials concerned. Now the competent Revenue official concerned itself has given a clear report before this Court that the monthly income of the accused is hardly in the range of Rs.4,000/- and that she is only a Crl.RP 3770/10 -10- coolie worker and that she has no landed property in her name. In the light of these facts, this Court is of the considered opinion that any further enhancement of the compensation would lead to inequity, inasmuch as it would be virtually impossible for the accused to pay off such high amounts and it would be a futile exercise. Accordingly, the said plea made by the petitioner (complainant) is also overruled.
In the light of these aspects, the Criminal Revision Petition will stand dismissed.
(ALEXANDER THOMAS, JUDGE) jg