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2008 DIGILAW 158 (KER)

Alex Mathew v. George John

2008-02-26

THOTTATHIL B.RADHAKRISHNAN

body2008
ORDER Thottathil B. Radhakrishnan, J. 1. The revision petitioner stands convicted for an offence punishable under S.138 of the Negotiable Instruments Act. The Trial Court found all the necessary ingredients to enter a conviction on trial, including that Ext. P1 cheque dated 11-12-1995 for an amount of Rs.90,000/- bounced on presentation. Having found that the offence has been proved, the Trial Court sentenced the accused to undergo simple imprisonment for six months. 2. As discernible from the judgment under appeal, the only contention urged and pressed at the time of hearing of the appeal was that the issuance of the statutory notice for such prosecution and its proper service has not been proved. That has been repelled by the appellate court. The sentence was modified to be one of imprisonment for a period of one month and direction to pay Rs. 1,50,000/- as compensation under S.357(3) and in default to undergo simple imprisonment for four months. 3. Having considered this revision, the two issues that arise for consideration are as to whether the courts below have acted in accordance with law in convicting the accused in spite of having noticed the discrepancy, as alleged by the accused, as regards his postal address and whether the lower appellate court erred in law in imposing an order for compensation while it interfered with the punishment in favour of the accused. 4. The lower appellate court confirmed the findings of the Trial Court regarding service of notice after a thorough reappraisal of the evidence and being satisfied that Ext. P1 cheque was issued by the accused to the complainant in discharge of debt. The only point that was canvassed before the appellate court was that, according to the accused, even on the basis of his ration card, the correct name of his house was "Kolidathvilayil veedu" and not "Kolidath veedu" and that the portion 'vilayil' having been left out of the name of his house, unless the prosecution summons the postman and proves the identity of the situs of delivery of the intimation, the mere fact that the accused had left that postal article "unclaimed" was insufficient to enter a conviction. After assimilating the materials on record, the lower appellate court has rightly concluded that, the discrepancy, as pointed out by the accused, has not, in any manner, affected the prosecution. After assimilating the materials on record, the lower appellate court has rightly concluded that, the discrepancy, as pointed out by the accused, has not, in any manner, affected the prosecution. The appellate court held that there was no difficulty in identifying the addressee as the accused. Ext. P4 was treated as ample testimony because the postman has gone to the correct person and had delivered to the right addressee. The lower appellate court repelled such defence which has no place under S.138 of the NI Act and it is the same address in Ext. P4 notice to which the Trial Court had issued summons to the accused, in answer to which he appeared. The courts below were therefore within the bounds of law in deciding the matter as done. I do not find any grounds to interfere. 5. On to the question whether the courts below ought to have issued notice before issuing an order of compensation, it has to be noted that the imposition of compensation is not enhancement of sentence. The dictate of law is that the accused has to be heard regarding any proposal to enhance the sentence already imposed on him. The imposition of compensation is a necessary outflow of the adjudication and decision making process by the Court of the first instance or the appellate court, as the case may be. Obviously, the award of compensation by the appellate court has had an impact on the reduction of sentence, as has been made by the lower appellate court. The compensation component is not fine and therefore the absence of any notice before ordering compensation does not vitiate the decision of the lower appellate court. But, a sentence in default of payment of compensation could not have been imposed in terms of law. For the aforesaid reasons, this revision is partly allowed vacating the sentence of simple imprisonment of three months imposed in default of payment of compensation. Rest stands.