Allowed

Aaremsky Sports and Fitness v. P.a.Sadanandam

Kerala HC15 Dec 2023Crl.Rev.Pet/1474/2017

Case brief

AI extract

What is this about?

High Court of Kerala allowed the complainant's revision petition and dismissed the accused's. The Court found the evidence sufficient for conviction under Section 138 NI Act and held that the appellate court unjustifiably reduced the sentence. It enhanced the term of imprisonment and fine to ensure adequate compensation and deterrence.

What did the court decide?

Revised sentence: One month simple imprisonment and fine of Rs. 6,10,000; two months default imprisonment. Case remanded for execution.

Aaremsky Sports and Fitness Vs P.a.Sadanandam — Cheque Dishonour | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

 THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
 FRIDAY, THE 15 TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA,

¶4

1945

¶5

 CRL.REV.PET NO. 1474 OF 2017

¶6

 AGAINST THE JUDGMENT DATED 24.08.2017 IN CRL.APPEAL
 NO.337/2015 OF ADDITIONAL SESSIONS COURT - VIII, ERNAKULAM

¶7

CC 36/2014 OF JUDICIAL FIRST CLASS MAGISTRATE-VII, ERNAKULAM

¶8

 REVISION PETITIONERS/APPELLANTS/ACCUSED:

¶9

1 AAREMSKY SPORTS AND FITNESS, I.S.PRESS BUILDING, BANERJEE ROAD, KOCHI-682018, REPRESENTED BY ITS MANAGING PARTNER, MOHAMMED SHAFI.

¶10

2 MOHAMMED SHAFI, AGED 40 YEARS S/O.HUSSAIN, MANAGING PARTNER, AAREMSKY SPORTS AND FITNESS, I.S.PRESS BUILDING, BANERJEE ROAD, KOCHI-682018.

¶11

BY ADV SMT.R.PADMAKUMARI

¶12

 RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:

¶13

1 P.A.SADANANDAM, AGED 65 YEARS, S/O.ACHUTHAN, PAZHAMBILLY HOUSE, NAYARAMBALAM P.O., KOCHI-682509.

¶14

2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

¶15

 R1 BY ADVS.

¶16

 SRI.K.S.MADHUSOODANAN

¶17

 SRI.M.M.VINOD KUMAR

¶18

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 2

¶19

SRI.RENJIT GEORGE, SENIOR PUBLIC PROSECUTOR

¶20

 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
 HEARD ON 15.12.2023, ALONG WITH Crl.Rev.Pet.200/2018, THE
 COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 3

¶22

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 15^TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA,

¶23

1945

¶24

 CRL.REV.PET NO. 200 OF 2018

¶25

 AGAINST THE JUDGMENT DATED 24.08.2017 IN CRL.APPEAL
 NO.337/2015 OF ADDITIONAL SESSIONS COURT - VIII, ERNAKULAM

¶26

CC 36/2014 OF JUDICIAL FIRST CLASS MAGISTRATE-VII, ERNAKULAM

¶27

REVISION PETITIONER/1ST RESPONDENT/COMPLAINANT:

¶28

 P.A.SADANANDAN,
 S/O.ACHUTHAN, AGED 66, PAZHAMBILLY HOUSE,
 NAYARAMBALAM P.O., KOCHI-682509.

¶29

 BY ADVS.
 SRI.K.S.MADHUSOODANAN
 SRI.M.M.VINOD KUMAR

¶30

 RESPONDENTS/APPELLANTS/ACCUSED & FORMAL PARTY:

¶31

1 AAREMSKY SPORTS AND FITNESS, I.S.PRESS BUILDING, BANERJEE ROAD, KOCHI-682018, REPRESENTED BY ITS MANAGING PARTNER, MOHAMMED SHAFI.

¶32

2 MOHAMMED SHAFI,

¶33

 S/O.HUSSAIN, AGED 41, MANAGING PARTNER, AAREMSKY SPORTS
 AND FITNESS, I.S.PRESS BUILDING, BANERJEE ROAD,
 KOCHI-682018.

¶34

3 STATE OF KERALA

¶35

TO BE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

¶36

R1 & R2 BY ADV SMT.R.PADMAKUMARI

¶37

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 4

¶38

 R3 BY SRI.RENJIT GEORGE, SENIOR PUBLIC PROSECUTOR

¶39

 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
 HEARD ON 15.12.2023, ALONG WITH Crl.Rev.Pet.1474/2017, THE
 COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶40

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 5

¶41

“CR”

¶42

O R D E R

¶43

Crl.R.P. No.1474 of 2017 is at the instance of the accused in C.C.No.36 of 2014 on the file of Judicial First Class Magistrate-VII, Ernakulam, and Crl.R.P.No.200 of 2018 is at the instance of the complainant in that case. The accused is assailing the judgment of conviction and sentence by the appellate court under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the NI Act’), and the complainant is assailing the very same judgment, for inadequacy of the sentence awarded.

¶44

For easy reference, parties shall be referred according to their status in C.C.No.36 of 2014.

¶45

The complainant filed C.C.No.36 of 2014 under Section 138 of the NI Act against the accused, the 1st accused the partnership firm, and the 2nd accused its managing partner. The case of the complainant is that while working as the Branch Manager in Associated Traders and Engineers Private

¶46

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 6

¶47

Limited, ERG Road, Ernakulam, he had acquaintance with the 2nd accused, who was the managing partner of the

¶48

1st accused partnership firm-AAREMSKY Sports and Fitness, functioning in the very same building. The 2nd accused borrowed an amount of Rs.2,50,000/- from the complainant on 09.09.2010, agreeing to pay monthly interest at the rate of 15% per annum. On 06.08.2011, he borrowed Rs.1,50,000/- from the complainant, by way of a cheque drawn from his account in Syndicate Bank, Shanmugham Road Branch, Ernakulam. Again, on 08.11.2011, he borrowed Rs.1,00,000/- from the complainant by way of a cheque. Thus he received Rs.5,00,000/- in total from the complainant. He was not regular in paying the interest, and at last when the complainant demanded back the amount, after adjusting Rs.66,700/- paid towards interest, he issued Ext.P1 cheque for an amount of Rs.6,00,000/- assuring him that he would get the amount on presentation before the

¶49

Bank. Accordingly, the complainant presented the cheque,

¶50

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 7

¶51

but it was dishonoured for the reason “Funds insufficient”. He sent lawyer notice to accused Nos.1 and 2, as envisaged under Section 138 (b) of the NI Act. Though the notice was received, the amount was not repaid, and hence the complaint.

¶52

On appearance of the accused before the trial court, the substance of accusation was read over and explained, to which they pleaded not guilty. Thereupon the complainant examined PWs 1 and 2 and marked Exts.P1 to P7 to prove his case. On closure of the evidence of the complainant, the accused were questioned under Section 313 of Cr.P.C. They denied the incriminating circumstances brought on record.

¶53

DW1 was examined and Exts.D1 to D5 were marked from defence side.

¶54

On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court found the accused guilty under Section 138 of the NI Act and they were convicted thereunder. Since the 1st accused was a

¶55

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 8

¶56

partnership firm, it was sentenced to pay fine of

¶57

Rs.60,000/-, and the 2nd accused, its managing partner was sentenced to undergo simple imprisonment for three months and compensation of Rs.6,10,000/- under Section 357(3) of

¶58

Cr.P.C., with a default sentence of simple imprisonment for a further period of two months.

¶59

Aggrieved by the conviction and sentence, accused Nos.1 and 2 preferred Crl.Appeal No.337 of 2015. The appellate court, re-appreciated the facts and evidence, but found nothing to interfere with the conviction of the accused under Section 138 of the NI Act and so, it was upheld. The sentence of the 1st accused was confirmed, but the sentence of the 2nd accused was modified and reduced to simple imprisonment till rising of court and fine of Rs.6,10,000/-, with a default sentence of simple imprisonment for one month. There was further direction that if the fine amount is

¶60

paid or realised, it shall be given to the complainant as compensation under Section 357(1)(b) of Cr.P.C.

¶61

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 9

¶62

Impugning the conviction and sentence imposed by the appellate court, accused Nos.1 and 2 preferred Crl.R.P.No.1474 of 2017, and impugning the very same judgment, the complainant preferred Crl.R.P.No.200 of 2018, for enhancing the sentence.

¶63

Now this Court is called upon to verify the legality, propriety and correctness of the judgment impugned.

¶64

Heard learned counsel for the accused (revision petitioners in Crl.R.P.No.1474 of 2017) and learned counsel

¶65

for the complainant (revision petitioner in Crl.R.P.No.200 of

¶66

2018).

¶67

9 . PW1-the complainant deposed that the 2nd accused

¶68

who was the managing partner of the 1st accused firm, borrowed Rs.5,00,000/- from him in three installments. The

¶69

first payment was by way of cash worth Rs.2,50,000/- on 09.09.2010. The second payment of Rs.1,50,000/- was by way of a cheque dated 06.08.2011. The third payment of

¶70

Rs.1,00,000/- was also through a cheque dated 08.11.2011.

¶71

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 10

¶72

The 2nd accused is not disputing the payment he had received by way of cheques dated 06.08.2011 and 08.11.2011. But, the payment in cash made on 09.09.2010 is denied by him. But PW1, the complainant, produced Ext.P6 passbook and PW2, his wife produced Ext.P7 passbook, to show that they had withdrawn Rs.1,30,000/each on 08.09.2010 and 09.09.2010 respectively. According to PW1, Rs.2,50,000/- was paid by him to the 2nd accused from the money withdrawn from the account of himself and his wife, as is evident from Exts.P6 and P7 pass books. So the complainant succeeded in proving the source of money to advance Rs.2,50,000/to the 2nd accused on 09.09.2010. Learned counsel for the accused would argue

¶73

that the said withdrawals were in connection with the marriage of the daughter of the complainant. But no evidence is forthcoming to substantiate that argument. It seems that, since the payments on 06.08.2011 and 08.11.2011 were by way of cheques, the accused was not

¶74

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 11

¶75

able to deny the same. But since the payment on 09.09.2010 was by way of cash, he was disputing that

¶76

payment. But the complainant succeeded in proving that he

¶77

was having money with him to pay Rs.2,50,000/- on 09.09.2010, to the 2nd accused.

¶78

The 1st accused is the firm AAREMSKY Sports and Fitness, and the 2nd accused is its managing partner. Ext.D4, the Registration Certificate of AAREMSKY Sports and Fitness, will show that it was a partnership firm and Sri.Muhammed Shafi was its managing partner. According to the complainant, the 2nd accused borrowed Rs.5,00,000/from him, for his business purposes. Towards discharge of the debt, the 2nd accused being the managing partner of AAREMSKY Sports and Fitness, issued Ext.P1 cheque dated 05.10.2013. So obviously, the 2nd accused borrowed the

¶79

amount from the complainant in his capacity as the managing partner of AAREMSKY Sports and Fitness, and towards discharge of that debt, he issued Ext.P1 cheque of

¶80

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 12

¶81

the partnership firm, and signed the same in his capacity as its managing partner. So the 1st accused partnership firm represented by its managing partner was responsible for the amount borrowed from the complainant.

¶82

The case of the accused in E xt.P5 reply notice is to the effect that the amount borrowed was only Rs.2,50,000/and it was already returned. He had given three blank cheques as security for the amount borrowed, but those cheques were not returned by the complainant, even after repayment of the amount borrowed. Later, misusing one of

¶83

those cheques, he filed a false complaint against him.

¶84

DW1, the 2nd accused admitted that, Ext.P1

¶85

cheque bears his signature and the name of the complainant was also written by him in that cheque. According to him, the date and the amount mentioned in Ext. P1 cheque were not written by him. The trial court found that there was no evidence to prove repayment of even the admitted amount by the 2nd accused. When the accused is admitting

¶86

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 13

¶87

monetary transaction between himself and the complainant, but disputing the quantum of amount borrowed, he is duty bound to prove the actual amount borrowed by him or he should show that the amount stated by the complainant was not correct. Ext.P1 cheque was issued for an amount of Rs.6,00,000/-. According to the complainant, agreeing to pay interest at the rate of 15%, the 2nd accused borrowed the amount for his business purposes, and after adjusting the interest amount already paid, a consensus was arrived between them, regarding the balance amount to be paid, and accordingly on 05.10.2013, Ext.P1 cheque was issued for Rs.6,00,000/-. Since he is admitting his signature in Ext.P1 cheque and also the entire handwriting, except the date, and amount, then the burden is all the more high on the 2nd accused to show that the amount shown in that cheque was not the actual amount due from him.

¶88

Relying on Ext.D1 statement of account of the 1st accused M/s. AAREMSKY Sports and Fitness in HDFC Bank,

¶89

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 14

¶90

Banerji Road Branch, learned counsel for the accused would submit that cheque bearing No.0577055 as well as cheque bearing No.0577058 were presented in bank in August, 2011. Ext.P1 cheque is bearing No.577057. So she would argue that the said cheque might have been issued in the year 2011 itself, and not in the year 2013 as alleged by the complainant. She would say that when the 2nd accused borrowed Rs.2,50,000/- from the complainant, as its security, three blank cheques were given, and Ext.P1 is one among those cheques. But the trial court found that the 2nd accused was not in the habit of issuing cheques in its chronological order, and so issuance of Ext.P1 cheque in the year 2013 is not a ground to disbelieve the case of the complainant, and it appears to be correct.

¶91

Ext.P1 cheque, if at all it was given as a blank one,

¶92

as a security for the amount borrowed, then also, the 2nd accused has no proof to show that he had repaid that amount. The testimony of PWs 1 and 2 is clear enough to

¶93

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 15

¶94

find that the amount advanced to the 2nd accused was Rs.5,00,000/- in three installments. The 2nd accused failed to prove that the amount borrowed was only Rs.2,50,000/-. As we have seen, since two payments were by way of cheques, he admitted that payment, and denied the payment made in cash. Even if Ext.P1 cheque was given as a security to ensure repayment, then also, he cannot escape from his liability, unless and until he proves that he had discharged the liability, for which the cheque has been issued.

¶95

In Bir Singh v. Mukesh Kumar [2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLT 598] , the Apex

¶96

Court held that when a signed blank cheque is voluntarily given to a payee, towards some payment, the payee may fill up the amount and other particulars, and that will not invalidate the cheque. The onus to rebut the presumption under Section 139 of the NI Act that the cheque has been issued in discharge of a debt or liability, is on the revision

¶97

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 16

¶98

petitioner. Even if a blank cheque leaf is voluntarily signed and handed over by the accused, towards some payment, it would attract the presumption under Section 139 of the NI Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.

¶99

In Sripati Singh v. State of Jharkand [2021 SCC OnLine SC 1002] , the Apex Court observed that if a cheque is issued as security, and if the debt is not repaid in any other form before the due date or if there is no understanding or agreement between the parties to defer the repayment, the cheque would mature for presentation.

¶100

Paragraphs 17 and 18 of that judgment read thus:

¶101

“17. When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as 'security' cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the

¶102

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 17

¶103

amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under S.138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an 'on demand promissory note' and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the Statute. When a cheque is issued even though as 'security' the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque / drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation.

¶104

If the above principle is kept in view, as already noted, under the loan agreement in question the

¶105

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 18

¶106

respondent No.2 though had issued the cheques as security, he had also agreed to repay the amount during June / July 2015, the cheque which was held as security was presented for realization on 20/10/2015 which is after the period agreed for repayment of the loan amount and the loan advanced had already fallen due for payment. Therefore, prima facie the cheque which was taken as security had matured for payment and the appellant was entitled to present the same. On dishonour of such cheque the consequences contemplated under the Negotiable Instruments Act had befallen on respondent No.2. As indicated above, the respondent No.2 may have the defence in the proceedings which will be a matter for trial. In any event, the respondent No.2 in the fact situation cannot make a grievance with regard to the cognizance being taken by the learned Magistrate or the rejection of the petition seeking discharge at this stage.”

¶107

Relying on Sripati Singh’s case cited supra, the Apex Court in Dashrathbhai Trikambhai Patel v. Hitesh

¶108

Mahendrabhai Patel and Another [2022 (7) KHC 61] ,

¶109

formulated the following principles :-

¶110

“(i) Where the borrower agrees to repay the loan within a specified timeline and issues a cheque for security but defaults in repaying the loan within the timeline, the

¶111

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 19

¶112

cheque matures for presentation. When the cheque is sought to be encashed by the debtor and is dishonoured, S.138 of the Act will be attracted;

¶113

(ii) However, the cardinal rule when a cheque is issued for security is that between the date on which the cheque is drawn to the date on which the cheque matures, the loan could be repaid through any other mode. It is only where the loan is not repaid through any other mode within the due date that the cheque would mature for presentation; and

¶114

(iii) If the loan has been discharged before the due date or if there is an 'altered situation', then the cheque shall not be presented for encashment.”

¶115

In the case on hand, DW1, the 2nd accused

¶116

admitted that he had given Ext.P1 cheque after filling up everything except the date and amount. He failed to prove discharge of even the admitted amount, which according to him, was only Rs.2,50,000/-. But, there is clear evidence to show that the 2nd accused borrowed Rs.5,00,000/- from the complainant. So, if at all, Ext.P1 cheque was given by the 2nd accused, without writing the date and amount, it will not invalidate the cheque. So in any view of the matter, the

¶117

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 20

¶118

conviction of the accused under Section 138 of the NI Act by the courts below is not liable to be interfered with.

¶119

Now coming to the sentence imposed, the trial court sentenced the 1st accused, partnership firm, to pay fine of Rs.60,000/- and the 2nd accused managing partner to undergo simple imprisonment for three months and to pay compensation of Rs.6,10,000/- with a default sentence of simple imprisonment for a further period of two months. But the appellate court without assigning any reason, modified the sentence by reducing the substantive sentence into simple imprisonment till rising of court, and the compensation amount was converted into fine, and the default sentence was reduced to simple imprisonment for one month. Aggrieved by the reduction in sentence, the complainant preferred Crl.R.P.No.200/2018, saying that the sentence imposed by the appellate court is only a flea bite sentence, not commensurate with the gravity of the offence committed.

¶120

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 21

¶121

Learned counsel for the complainant is relying on

¶122

the decision Damodar S. Prabhu v. Sayed Babalal H.

¶123

[(2010) 5 SCC 663] , to say that with respect to an offence

¶124

of dishonour of cheque, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. Since the default sentence was reduced to simple imprisonment for one month, the accused could very well escape from that liability, by simply undergoing imprisonment just for a month. So, the complainant will not get the amount covered by the cheque and so the punishment imposed by the appellate court, according to him, is quite inadequate. In paragraph 17 of Damodar S.

¶125

Prabhu’s case cited supra, we read thus:

¶126

“17 . In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act—Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5]:

¶127

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 22

¶128

“… Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque.

¶129

If we were to examine the number of complaints filed which were ‘compromised’ or ‘settled’ before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued.”

¶130

21. In Anilkumar v. Shammy [2002 KHC 888 :

¶131

2002 (3) KLT 852] , this Court laid down the guidelines regarding payment of compensation under Section 357(3) of

¶132

Cr.P.C. Paragraph 16 of that judgment reads thus:

¶133

“ 16 Misplaced sympathy cannot also have any place in the criminal adjudicatory process. It would be myopic to assume that the purpose of the Legislature was only to ensure that the payee gets the amount. It

¶134

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 23

¶135

is equally the purpose of the Legislature to ensure that account holders make use of their cheques carefully, diligently and with the requisite caution so that the intended healthy commercial morality would prevail in the economy. That cannot be achieved unless the account holders are deterred from callous, indifferent and irresponsible issue of blank cheques to suit their convenience even on the insistence of unscrupulous money lenders. Every cause may have its martyrs and intelligent, humane and compassionate use of the discretion in sentencing by the courts alone can perhaps ensure the interests of justice.”

¶136

In Vijayan R. v. Baby and Another [2011 (4)

¶137

KHC 276 : (2012) 1 SCC 260] , the Apex Court held that the apparent intention is to ensure that not only the offender is punished, but also ensure that the complainant invariably receives the amount of the cheque by way of compensation under Section 357(1)(b) of Cr.P.C.

¶138

Relying on Anilkumar’s case and Vijayan’s case

¶139

cited supra, this Court in Sasikumar v. Ushadevi [2023

¶140

(6) KHC 444] held that while sentencing an accused for the

¶141

offence punishable under Section 138 of the NI Act, a

¶142

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 24

¶143

criminal court has to keep the compensatory part in mind, which has to be commensurate to the cheque amount and not to exceed twice the amount, so that it can be appropriated towards the compensation payable to the

¶144

complainant under Section 357 of Cr.P.C.

¶145

Learned counsel for the complainant would argue that reduction of the sentence by the appellate court into simple imprisonment for one day till rising of court and fine of Rs.6,10,000/with a default sentence of simple imprisonment for one month, was too low a punishment, and the 2nd accused, if he wanted to avoid payment, could very well undergo simple imprisonment just for a month. So the complainant will be deprived of his remedy to recover the amount from the accused.

¶146

In the case on hand, what the complainant apprehended really happened. While suspending sentence, as per the order of this Court, in Crl.M.A.No.6498 of 2017, the 2nd accused was directed to execute bond for

¶147

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 25

¶148

Rs.30,000/- with two solvent sureties each for the like sum to the satisfaction of the trial court, and on further condition to deposit 25% of the fine amount. That order was dated 07.12.2017. The 2nd accused did not execute the bond by depositing 25% of the fine amount, and so the trial court proceeded for execution of the sentence. The 2nd accused was arrested and produced before JFCM-VII, Ernakulam on 08.11.2023 at 6.25 p.m. and he was sent to jail. He was released on 07.12.2023 on completion of the one month period, which was the default sentence for non-payment of the fine amount of Rs.6,10,000/-. When the revision petitions were taken up for hearing, learned counsel for the accused submitted that, the 2nd accused had already served the sentence, and nothing remains to be executed against him. But as per the judgment of the appellate court, he had to undergo simple imprisonment for one day till rising of court also. From the report of JFCM-VII, Ernakulam, it is seen that since the 2nd accused was produced before the

¶149

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 26

¶150

court at 6.25 p.m., he did not undergo the substantive sentence of imprisonment till rising of court imposed by the appellate court. So the contention of the learned counsel for the accused that the 2nd accused had already served the sentence is not fully correct.

¶151

On going through the facts and circumstances, this Court is of the view that, the alteration and reduction of sentence by the appellate court was not proper and it was disproportionate to the offence committed by the accused. By undergoing simple imprisonment just for a month, now the 2nd accused would contend that his liability to pay Rs.6,10,000/- is over. Learned counsel would submit that the complainant advanced amounts to the 2nd accused from his retirement benefits, and even now he is not able to realise that amount from the accused, as he simply went into the jail for one month, and came out saying that he had already served the sentence imposed by the appellate court. So this Court is of the view that the alteration and reduction

¶152

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 27

¶153

of the sentence by the appellate court is liable to be set aside, and a proper sentence has to be imposed, which is commensurate with the offence committed.

¶154

Adverting to the facts and circumstances, this Court is upholding the conviction of both the accused, and the sentence of the 1st accused. But regarding the sentence of the 2nd accused, it is liable to be enhanced. He has to undergo simple imprisonment for a period of one month, and fine of Rs.6,10,000/- under Section 138 of the NI Act. In default of payment of fine, he has to undergo simple imprisonment for a period of two months. If the fine amount is realised, it will be given to the complainant as compensation under Section 357(1)(b) of Cr.P.C. The period from 08.11.2023 till 07.12.2023 during which the 2nd accused was in jail, shall be set off against the substantive sentence of simple imprisonment for one month. But if he fails to pay the fine amount, he has to suffer simple imprisonment for two months.

¶155

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 28

¶156

It is submitted that the 2nd accused has already deposited Rs.1,00,000/- (Rupees One Lakh only) before the trial court. So the balance amount of fine to be deposited is only Rs.5,10,000/- (Rupees Five Lakh Ten Thousand only). The 2nd revision petitioner in Crl.R.P.No.1474 of 2017 (the 2nd accused) has to appear before the trial court to pay the balance fine amount of Rs.5,10,000/- on or before 01.03.2024 and in default, the trial court has to issue arrest warrant against him to execute the default sentence. The trial court has to proceed against the 1st revision petitioner in Crl.R.P.No.1474 of 2017 (the 1st accused) also to execute the sentence passed against the 1st accused firm.

¶157

Registry of this Court is directed to transmit the case records forthwith to the trial court for facilitating execution of the sentence against both the revision petitioners (A1 and A2) without delay. It is further clarified that the complainant can receive Rs.1,00,000/- already deposited by the 2nd accused before the trial court.

¶158

Crl.R.P Nos.1474 OF 2017 & 200 OF 2018 29

¶159

Accordingly, Crl.R.P.No.1474 of 2017 stands dismissed,

¶160

and Crl.R.P.No.200 of 2018 stands allowed, to the extent as

¶161

above.

¶162

Sd/-

¶163

SOPHY THOMAS, JUDGE