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2017 DIGILAW 1399 (KER)

Jose Thomas v. Sunny Joseph S/o. Joseph

2017-11-10

ALEXANDER THOMAS

body2017
ORDER : The petitioner has been indicted for the offence punishable under Section 138 of the Negotiable Instruments Act in ST 1572/96 on the file of the Court of Judicial Magistrate of the I Class, Palai instituted on the basis of a complaint filed by the first respondent herein. Ext.P1 dishonoured cheque dated January 1996 is for Rs.15,000/-. The cheque was dishonoured as per Ex.P2 bank memo dated February 1996. The trial court as per the impugned judgment rendered on 16.8.1999 had convicted the petitioner for the aforesaid offence and had sentenced to pay fine of Rs.15,000/- and in default thereof to undergo simple imprisonment for a period of three months and that out of the fine amount of Rs.15,000/-, a sum of Rs.13,000/- was directed to be paid to the complainant as compensation in terms of Section 357(1) of the Code of Criminal Procedure. The petitioner (accused) had filed Criminal Appeal No.217/1999 before the appellate court. The appellate court concerned (Court of Addl. Sessions Judge (Spl.), Kottayam) as per the impugned judgment rendered on 27.1.2003 found that the conviction does not suffer from any legal infirmity and had thus confirmed the conviction. However, the petitioner specifically contended that at that relevant time (in 1996), Judicial Magistrate of First Class did not have jurisdiction to impose a fine exceeding Rs.5,000/-, in view of the limitation under Section 29 of the Cr.PC, 1973. It was only as per the subsequent amendment made to the provisions of Section 138 of the NI Act with effect from 6.2.2003 that the provision was made enabling imposition of fine, which could extend to twice the cheque amount. Since the cause of action pertaining to this case was prior to the said amendment, the Judicial Magistrate of First Class did not have jurisdiction at that point of time to impose a fine exceeding Rs.5,000/-. In view of this technicality, the Appellate Sessions Court has modified the sentence by ordering that the petitioner should suffer simple imprisonment for a period of one month and to pay compensation of Rs.17,000/- to the complainant under Section 357(3) of the Cr.PC. These verdicts of the courts below regarding the conviction and sentence imposed on the petitioner are under challenge in the present revision petition. 2. The revision petition was filed as early as on 21.5.2003. These verdicts of the courts below regarding the conviction and sentence imposed on the petitioner are under challenge in the present revision petition. 2. The revision petition was filed as early as on 21.5.2003. This Court as per order dated 22.5.2003 had admitted the revision petition and had passed interim order dated 22.5.2003 on Crl.MA No.4796/2003 in this revision suspending execution of the impugned sentence in this case on condition of the petitioner executing a bond for Rs.10,000/- with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate and depositing an amount of Rs.13,000/- before the trial court within one month etc. 3. The trial court has now informed the Registry of this Court as per letter dated 3.10.2017 that in compliance with the said interim order dated 22.5.2003 passed by this Court in this revision, the petitioner had executed the requisite bond with two solvent sureties and has also deposited an amount of Rs.13,000/- on 30.6.2003 before the trial court etc. However, it is noted by the Registry that notice sent to R- 1 (complainant) was initially returned back with the endorsement that the respondent is missing. Later, the Registry has endorsed that notice sent to R-1 has been returned unserved and that service of notice on R-1 is not complete. As per endorsement dated 9.12.2016, it is again endorsed by the Registry that notice was sent to R-1 through the Circle Inspector of Police, Pala on 9.12.2016 and that later it was returned unserved stating that the addressee left for Bangalore. Thereafter, the petitioner has not taken any steps, whatsoever, to ensure proper service of notice on R-1. This Court could have dismissed the revision petition for non-prosecution. However, considering the substantive sentence of one month’s simple imprisonment that imposed on the petitioner by the appellate court, this Court is inclined to consider the merits of the matter. 4. Heard Sri. K.J. Kuriachan, learned counsel appearing for the revision petitioner (accused) and Sri. Saigi Jacob Paletty, learned Prosecutor appearing for R-2 State. 5. The gist of the case of the prosecution is to the effect that in discharge of the liability of Rs.15,000/- owed by the accused to the complainant, the revision petitioner (accused) had duly executed and issued Ext.P1 cheque dated February 1996 for Rs.15,000/- drawn from his account and payable in favour of the complainant. 5. The gist of the case of the prosecution is to the effect that in discharge of the liability of Rs.15,000/- owed by the accused to the complainant, the revision petitioner (accused) had duly executed and issued Ext.P1 cheque dated February 1996 for Rs.15,000/- drawn from his account and payable in favour of the complainant. The cheque when presented resulted in dishonour etc. Thereafter, the complainant had sent statutory demand notice, which was duly served on the petitioner, and that since the amount was not paid, the complainant had instituted the above said complaint, which resulted in trial. During the trial, the complainant was examined as PW1 and has marked Exts.P1 to P8 documents. The defence did not adduce any oral or documentary evidence. Both the courts below, after careful evaluation and appreciation of entire evidence on record have come to the considered conclusion that the revision petitioner has duly executed Ext.P1 cheque as contemplated under Section 138 of the NI Act and that the accused has failed to rebut the statutory presumption. The defence offered by the accused was also duly considered and refused by both the courts below. The finding of conviction is based on proper appreciation of evidence on record and the same cannot be attacked as being perverse or illegal. Therefore, this Court is not in a position to interfere with the finding of conviction in this case. 6. As regards the question of sentence, this Court is of the firm opinion that the appellate court has committed a serious illegality, which has caused prejudice to the petitioner (accused) in the appeal instituted by him. The trial court as per the impugned judgment had sentenced the petitioner by imposing fine of Rs.15,000/- out of which Rs.13,000/- was directed to be paid as compensation to the complainant in terms of Section 357(1)(b) of the Cr.PC, and on default of the petitioner to pay the fine amount as above, he will have to suffer simple imprisonment for a period of three months. True that the learned Magistrate did not have jurisdiction to impose a fine of Rs.13,000/- as per the then prevailing law at the time of the cause of action. So the learned Magistrate could not have imposed a fine exceeding Rs.5,000/- in view of the limitation under Section 29(2) of the Cr.PC, 1973. True that the learned Magistrate did not have jurisdiction to impose a fine of Rs.13,000/- as per the then prevailing law at the time of the cause of action. So the learned Magistrate could not have imposed a fine exceeding Rs.5,000/- in view of the limitation under Section 29(2) of the Cr.PC, 1973. It is only later in the year 2003, that the provisions contained in Section 138 of the NI Act was amended, that too prospectively, enabling the trial court to impose fine, which could be up to twice the cheque amount. Therefore, obviously, the said amended provision was not applicable in the instant case and that the learned Magistrate lacked jurisdiction to impose fine exceeding Rs.5,000/-. That certainly was an illegality committed by the Magistrate. But while rectifying the illegality, the appellate sessions court could not have committed a greater illegality by imposing greater burden and prejudice on the accused, that too in an appeal preferred by the accused. Nobody has a case that the complainant has filed any revision before the sessions court praying for enhancement of the sentence and compensation. Therefore, the sessions court ought to have modulated the relief in such a manner that the illegality committed by the trial Magistrate is rectified and at the same time, no further prejudice is caused to the revision petitioner (accused) compared to the overall sentence that he had to suffer on the basis of the impugned judgment of the trial Magistrate. On a prudent analysis, any court of law would have only come to an irresistible conclusion that in the facts of this case, the petitioner could have been imposed substantive sentence of imprisonment till the rising of the court and then imposed a fine amount that was imposed by the trial Magistrate. This cause of action would have ideally achieved the purpose of not only to rectify the illegality committed by the trial Magistrate but also to ensure that the judgment passed by the appellate court is legal and proper and does not cause any prejudice, which is substantially more than what he had to suffer under the impugned trial court judgment which is the subject matter of challenge in the appeal. Therefore, in these circumstances, this Court is constrained to hold that the substantive sentence imposed on the petitioner by the appellate sessions court is illegal and improper. Therefore, in these circumstances, this Court is constrained to hold that the substantive sentence imposed on the petitioner by the appellate sessions court is illegal and improper. For rectifying this illegality, this Court has necessary powers under the revisional jurisdiction and since the illegality is staring at this Court, the fact that notice to R-1 could be dispensed with, so as to avoid miscarriage of justice on the petitioner (accused). 7. Accordingly, it is ordered that the impugned substantive sentence of simple imprisonment for month imposed on the petitioner (accused) will stand set aside. Accordingly, it is ordered that the petitioner (accused) will be sentenced to suffer imprisonment till the rising of the court and to pay fine of Rs.13,000/- as ordered by the trial Magistrate. The amount of Rs.13,000/- which has already been deposited by the petitioner should be disbursed as compensation to the complainant by the trial court in terms of Section 357(1)(b) of the Cr.PC, after issuing notice of intimation to him, to receive the said amount. 8. The petitioner shall personally appear before the trial court at 11 a.m. on any day on or before 30.12.2017 to receive the sentence of imprisonment till rising of the court. Since the petitioner has already deposited the entire fine amount of Rs.13,000/- before the trial court on 30.06.2003 as reported by the said court, there is no necessity for the petitioner to remit the said fine amount and it is for the trial court to ensure that the said amount is released to the complainant as directed hereinabove. In case the petitioner does not appear before the trial court to receive the aforesaid sentence of imprisonment till the rising of the court within the aforesaid time limit, then the trial court will initiate necessary action to ensure that the sentence is execute. Registry will forward a copy of this order to the trial court, petitioner and to the R-1 (complainant) for information. With these observations and directions, this Criminal Revision Petition will stand finally disposed of.