K M IBRAHIM Vs. K P MOHAMMED

JUDGEMENT

(1.) THE revision petitioner was the appellant in Criminal appeal No. 74/2003 on the file of the Court of Additional sessions Judge (Adhoc)II, Kasaragode. The appeal was directed against the conviction and sentence imposed on the appellant in c. C. NO. 317/2000 by the Chief Judicial Magistrate, Kasaragode.

(2.) THE brief facts of the case are the following: the appellant issued a cheque to the 1st respondent herein for an amount of Rs. 95,000/ -. It was in discharge of a legally enforceable debt. But, when the cheque was presented by the 1st respondent, it was dishonoured on the ground that there was not sufficient funds in the account of the revision petitioner. The respondent issued statutory notice within the prescribed time limit intimating about the dishonour of the cheque and also calling upon the petitioner to pay the amount due. But the petitioner failed to pay the amount in time. Therefore the complaint was filed. On appearance, the petitioner pleaded not guilty to the accusation read out to him. From the side of the respondent, he got himself examined as PW1 and Exts. P1 to P5 were marked. From the side of the petitioner no defence evidence was tendered. Considering the evidence on recored, the trial court found that the accused has committed the offence under Section 138 of the Negotiable Instruments Act and he was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,05,000/ -. In default of payment of the fine it was ordered that he shall undergo rigorous imprisonment for a further period of three months. If fine was realised it was ordered that Rs. 1,00,000/- shall be paid as compensation to the respondent/complainant.

(3.) THE revision petitioner aggrieved by the said judgment, filed Criminal Appeal No. 74/2003. The appellate court confirmed the conviction of the revision petitioner. But, reduced the sentence. It was ordered that the petitioner shall suffer imprisonment for a period of one month and also to pay a fine of Rs. 95,000/ -. In default, he has to undergo imprisonment for a further period of two months. The petitioner challenges the conviction and sentence imposed on him by the appellate court. At the time of hearing, the petitioner contended that there are conflicting decisions of the Apex Court concerning awarding of sentence of imprisonment for the default to pay compensation ordered under Section 357 (3) of the Cr. P. C. It was pointed out that in Hari Kishan Harising and State of Haryana v. Sukhbir Singh and others [air 1988 SC 2127] and in suganthi Suresh Kumar v. Jagdeeshan [air 2002 SC 681], the Apex Court held that if there is default to pay the compensation ordered, there can be a direction for default sentence also. But, In Ahammedkutty v. Abdullakoya [2008 (1)KLT 851], the Apex Court took a different view. It was held that there cannot be any default sentence for the default to pay compensation under Section 357 (3) of the Cr. P. C. The amount defaulted in such cases can be recovered as if it is a fine, as per section 421 of the the Code of Criminal Procedure, it was held. Considering these three decisions, a learned Single Judge of this court in Ganga C. v. Lakshmi Ammal and Another [2008 (2) KHC 364] held that the lower courts in the State should follow the earlier decisions of the Apex Court and not the decision in Ahammedkutty v. Abdullakoya. The learned judge, who heard this revision felt that such a direction from the high Court may not be appropriate, as normally, the courts below are bound to follow the decisions latest in point of time. Based on the said view taken, the learned Judge referred the matter for consideration by a Division Bench.