K.C. JOSEPH Vs. C.H. MAMMU HAJI

JUDGEMENT

(1.) This criminal revision petition has come up for consideration of the correctness of the judgment of the Sessions Judge, Kasaragod, in Crl. A. No. 105 of 1996. That appeal was filed by the revision petitioner-accused challenging the conviction rendered against him in C.C. No. 235 of 1995 by the Judicial First Class Magistrate-II, Hosdurg. That C.C. No. 235 of 1995 was launched by the first respondent on the ground that the cheque issued by the revision petitioner in his favour for a sum of Rs. 25,000 when presented in the bank, was dishonoured. Since the revision petitioner denied the complaints of the first respondent before the trial Court, evidence was recorded. On conclusion of the trial the learned Magistrate found the revision petitioner guilty under Sec. 138 of the Negotiable Instruments Act, 1881, and thereby sentenced him to undergo simple imprisonment till the rising of the court and also to pay an amount of Rs. 30,250 as compensation under Sec. 357(3) of the Criminal Procedure Code, and in default of the payment, he shall undergo simple imprisonment for a period of three months. Out of the compensation amount, if realised, an amount of Rs. 30,000 shall be given to the complainant as compensation and Rs. 250 shall be credited to the State as compensation for the total loss suffered by the State in the dissolution of the dispute between the parties. The Sessions Judge in appeal modified the sentence as follows, while confirming the conviction under Sec. 138 of the Negotiable Instruments Act :

(2.) As pointed out above, the correctness of the judgment of the Sessions Judge is challenged. It is submitted that the revision petitioner did not pay the compensation of Rs. 28,500 as per the order of the Sessions Judge and, therefore he was taken into judicial custody as per the default clause found in the judgment of the Sessions Judge and he had undergone imprisonment for the abovesaid period of three months. However, to ascertain whether he had undergone the imprisonment of three months on account of the non-payment of the compensation amount as per the order of the Sessions Judge, an official memorandum was issued by this court on Oct. 12, 1998, to the Judicial First Class Magistrate-II of Hosdurg. The learned Magistrate has sent a reply stating that the revision petitioner K.C. Joseph, the accused in C.C. No. 235 of 1995 on his file, was sent to jail on Oct. 28, 1997, for three months of simple imprisonment since the compensation amount was not remitted by him before that court (see reply reference Dis. No. 2967 of 1998, dated Oct. 13, 1998). The warrant of commitment was received back from the jail after the completion of the imprisonment.

(3.) In the above situation some legal difficulties have arisen in disposing of the criminal revision petition. Those difficulties can be elaborately discussed on the basis of rule of law and proper adjudication can be arrived at in this revision itself. Sec. 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act") would evince that the punishment shall be with the imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both. Only out of this fine amount, the compensation can be awarded in accordance with the procedure laid down in Sec. 117 of the Act. The Act does not speak anywhere that compensation alone can be awarded without any fine amount being imposed.