S VENKITESWARAN Vs. K M AUGUSTINE

JUDGEMENT

(1.) One of the questions posed in this revision is whether S.311 of the Cr.P.C. can be invoked in the case of a trial in a summons case.

(2.) The revision petitioner is the second accused in C.C. No. 162 of 1999 of the Judicial First Class Magistrates Court - I, Ernakulam and the first accused is the company, whom he represented. The first respondent herein filed the said case alleging that the two accused borrowed a sum of Rs. 4 Lakhs from the complainant agreeing to repay the same on demand and that in due course Ext. P1 cheque was issued to cover the debt, which on presentment in bank, was dishonoured for want of funds. The Trial Court accepted the complainants case and convicted both the accused. The present petitioner was sentenced to undergo S.I. for one year and to pay a fine of Rs. 5,000/- (in default S.I. for three months). On appeal by way of Crl.A. No. 329 of 2000, the learned Sessions Judge, Ernakulam confirmed the conviction, but modified the sentence by reducing the substantive punishment from one year to one month, but mulcting the accused with liability for payment of compensation of Rs. 4,10,000/-. If compensation was realised, Rs. 4 lakhs out of the same would go to the complainant. It is aggrieved by this direction that the petitioner has come up before this Court.

(3.) Learned counsel for the petitioner urged two points. According to him, this is a summons case governed by S.274 of the Cr.P.C., according to which, the substance of the evidence alone has to be recorded by the Magistrate. In the instant case, CMP No. 2192 of 2000 was filed before the Trial Court seeking to correct an alleged mistake in the evidence recorded by the court with regard to PW 1. It is contended that the grant of that petition and recall of PW 1 invoking power under S.311 of the Cr.P.C. is unjustified. Secondly, it is argued that the grant of compensation by the learned Sessions Judge was illegal in so far as the liability to pay compensation has not been apportioned among the two accused and also because the financial capacity of the accused to pay the compensation has not been taken into account.