Kerala High Court
A.A.Anto vs M/S. Benhur Traders & Investments (P) on 7 November, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE MR. JUSTICE B.KEMAL PASHA
FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934
Crl.Rev.Pet.No. 1637 of 2002 (B )
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AGAINST THE ORDER/JUDGMENT IN CRA.830/2001 of II ADDL.DISTRICT
COURT,ERNAKULAM DATED 07-11-2002
AGAINST THE ORDER/JUDGMENT IN CC.770/1999 of ADDL.C.J.M.(E&O),ERNAKULAM
REVISION PETITIONER(S)/APPELLANT/ACCUSED::
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A.A.ANTO, AGED 27 YEARS,
ARRICKAL HOUSE, CHOWARA P.O., ALUVA.
BY ADV. SRI.SHAJI P.CHALY
RESPONDENTS/RESPONDENTS/COMPLAINANTS:
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1. M/S. BENHUR TRADERS & INVESTMENTS (P)
LTD., MASS BUILDING, COCHIN-18
REPRESENTED BY ASSISTANT MANAGER.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. MADHUBEN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
08-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B. KEMAL PASHA, J
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Crl.R.P.No. 1637 of 2002
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Dated this the 8th day of February, 2013
O R D E R
Petitioner is the accused in C.C.770 of 1999 of the Additional Chief Judicial Magistrate(Economic Offences), Ernakulam and the appellant in Crl.Appeal No.830 of 2001 of the Sessions Court, Ernakulam. The case before the trial Court was as a result of a private complaint filed by the first respondent herein as complainant against the petitioner herein as accused alleging an offence under Section 138 of the Negotiable Instruments Act. The complaint was based on the allegation that the petitioner, in discharge of his liability to pay an amount of Rs.37,000/- to the complainant, issued Ext.P1 cheque to the complainant, which on presentation returned dishonoured for insufficiency of funds in the accounts of the petitioner. A demand notice was issued in time which evoked no response. Within the period, the complaint was also preferred. The trial Court, Crl.R.P.No. 1637 of 2002 : 2 : after the trial found the petitioner guilty of the offence under Section 138 of the N.I Act, convicted him thereunder, and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs.42,000/-, in default, to undergo simple imprisonment for one more month. The petitioner unsuccessfully challenged the conviction and sentence before the Sessions Court. The learned Additional Sessions Judge after hearing both sides confirmed the conviction and sentence passed by the trial Court and dismissed the appeal through the impugned judgment.
2. The learned counsel for the petitioner has pointed out that there was a subsequent civil suit pending between the parties and execution proceedings are going on. According to the learned counsel for the petitioner, substantial amounts were already paid by the petitioner in the execution proceedings. Learned counsel for the petitioner has canvassed for lifting the sentence of imprisonment imposed and to confine the sentence to fine with default sentence. It is also argued that the amounts paid by the petitioner in the execution proceedings may also Crl.R.P.No. 1637 of 2002 : 3 : be taken care of while awarding compensation to the first respondent herein.
3. On going through the evidence in this case and the judgment passed by the trial Court as well as the impugned judgment, this Court does not find any illegality, irregularity or impropriety in the impugned judgment. The conviction concurrently passed by both the Courts below does not call for any interference at all.
4. The trial Court has imposed a sentence of simple imprisonment for three months and to pay a fine of Rs.42,000/- in default, to undergo simple imprisonment for one more month. On hearing the submissions made by the learned counsel for the petitioner that amounts are being paid by the petitioner to the first respondent in execution of the decree in the civil suit, I am of the view that the sentence imposed by the Court below can be modified by lifting the sentence of imprisonment imposed. The petitioner shall pay the fine of Rs.42,000/- and in default, to undergo simple imprisonment for three months. The Court below has ordered the payment of compensation of Rs.40,000/- to Crl.R.P.No. 1637 of 2002 : 4 : the first respondent out of the fine amount, under Section 357(1) Cr.P.C. As per S.357(5) Cr.P.C., at the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under Section 357 Cr.P.C. In this particular case any compensation has not been so far paid or recovered. Matters being so, S.357(5) Cr.P.C. has no application as far as the present case is concerned.
In the result, this Crl.R.P. is allowed in part by maintaining the conviction and modifying the sentence. Petitioner is sentenced to pay a fine of Rs.42,000/-, in default, to undergo simple imprisonment for three months. If the fine amount is paid or recovered, an amount of Rs.40,000/- shall be paid to the first respondent as compensation under Section 357(1) Cr.P.C.
B. KEMAL PASHA, JUDGE ul/-
Crl.R.P.No. 1637 of 2002 : 5 : Crl.R.P.No. 1637 of 2002 : 6 :
B. KEMAL PASHA, J ******************* Crl.R.P.No.1637 of 2002 ******************* O R D E R 8th day of February, 2013 Crl.R.P.No. 1637 of 2002 : 7 : [C] Crl.R.P.No.1627 of 2002