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2010 DIGILAW 503 (KER)

M. C. Mahesh v. Satheesh

2010-07-06

V.K.MOHANAN

body2010
ORDER : V.K. Mohanan, J. 1. The revision petitioner is the complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act and in this revision petition he challenges the insufficient sentence awarded against the accused. 2. The case of the revision petitioner is that towards the discharge of the legally enforcible debt of Rs. 1,00,000/- due to him, the accused issued Ext.P1 cheque dated 20.1.2006, which when presented for encashment dishonoured for want of sufficient fund in the account maintained by the accused and according to the revision petitioner, though he had caused to issue a statutory notice demanding for the payment of the amount covered by the dishonoured cheque, no amount was paid and hence the respondent/accused committed the offence punishable under Section 138 of the N.I.Act. Cognizance was taken upon the complaint preferred by the revision petitioner, for the said offence and instituted S.T.C.No.1353/2006 in the Judicial First Class Magistrate-II, Palakkad. On conviction the trial court sentenced the accused to undergo simple imprisonment for 6 months and also directed him to pay compensation of Rs. 1,00,000/- under Section 357(3) of Criminal Procedure Code to the complainant/revision petitioner. But no default sentence is prescribed. 3. Challenging the above conviction and sentence, though the respondent/accused had preferred an appeal, by judgment dated 30.9.2009 in Crl.A.No.55/2008, the court of Addl. Sessions, Adhoc-I, Palakkad dismissed the appeal confirming the conviction but the sentence was modified and reduced the same till the rising of the court. No interference was made with respect to the order of compensation and no default sentence also imposed. 4. Now the revision petitioner challenge the orders of the trial court as well as the lower appellate court on the ground that the sentence imposed against the respondent/accused is inadequate. 5. Heard the learned counsel for the revision petitioner and the respondents and also perused the judgments of the courts below. 6. The learned counsel for the revision petitioner pointed out that by virtue of the appellate court order, in effect there is no sentence at all and no provision is made in order to enforce the order of compensation as there is no default sentence. The learned counsel for the respondent submitted that the respondent/accused is ready to pay the amount and 6 months time be granted to the revision petitioner to effect the payment. 7. The learned counsel for the respondent submitted that the respondent/accused is ready to pay the amount and 6 months time be granted to the revision petitioner to effect the payment. 7. Going by Section 138 of the N.I. Act it can be seen that the sentence of imprisonment is not mandatory and it is also clear from the above provision that on conviction the court can impose a fine and amount can be fixed as double of the cheque amount. In Ahammed Kutty v. Abdullakoya, (2009) 6 SCC 660 , the honourable Apex Court has held that no default sentence can be fixed or imposed on the failure of the accused in paying the compensation under Section 357(3) of Criminal Procedure Code But in a recent decision of the Apex Court, in Abbas v. Sabu Joseph, 2010 (2) KLT 943 (SC) has held that a sentence of imprisonment can be imposed for default in payment of compensation awarded under Section 357(3). One of the purposes of enacting of Section 138 is to expedite the commercial transaction and the stability of the same. Therefore, in order to enforce the direction ordered under Section 357(3), the imposition of default sentence is inevitable otherwise there must be sentence of fine and said fine can be realised by invoking the default sentence also. On such realisation of the fine amount subject to the orders of the court amount can be given to the complainant as compensation in terms of 357(1)(b) of Criminal Procedure Code. 8. Having regard to the facts and circumstances involved in the case and in the light of the above settled legal position, the courts below ought to have seen that proper safeguards have made so as to enforce the direction for the compensation ordered against the accused. In the decision in Damodar S. Prabhu v. Sayed Babalal. H., J.T. 2010 (4) SC 457], the Apex Court has held that in the case of dishonour of cheques the compensatory aspect of the remedy has to give preference than the punitive aspect. 9. Therefore, I am of the view that while granting some time to the accused to pay the compensation amount, considering the fact that the amount of Rs. 9. Therefore, I am of the view that while granting some time to the accused to pay the compensation amount, considering the fact that the amount of Rs. 1,00,000/- which belong to the complainant is with the revision petitioner for the last 4 years and therefore the compensation amount ordered by the courts below can be enhanced slightly and suitable default sentence has also be imposed. 10. In the result, this revision petition is disposed of maintaining the sentence of imprisonment ordered by the lower appellate court but the compensation amount is enhanced to the tune of Rs. 1,15,000/- and in default in paying the said compensation amount, the respondent/accused is directed to undergo simple imprisonment for 6 months. Accordingly the respondent/accused is granted 3 months time to receive the sentence and to pay the compensation amount. Both the counsel submitted that the accused had already suffered the sentence of imprisonment, if so, the accused need not further undergo the imprisonment but this observation is subject to the verification of the trial court, and if the said submission is not correct on verification, it is for the trial court to execute the above sentence of imprisonment. The accused/respondent is free to pay the compensation either directly to the complainant or by remitting the amount in the trial court subject to the satisfaction of the learned Magistrate. Accordingly the accused/respondent is directed to appear before the trial court on 6th October, 2010 to pay the compensation. In case any failure on the part of the revision petitioner in appearing before the court below as directed above and in making the deposit of compensation amount, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to realise the compensation amount from the revision petitioner.