MOIDEEN HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS revision petition is filed by the complainant against the judgment dated 17/7/2008 passed by the Additional Sessions Judge,Manjeri in Crl.A. No.204/2006. By the impugned judgment, the learned Sessions Judge had upheld the judgment dated 31/3/2006 in C.C.No.105/2003 passed by the learned Judicial First Class Magistrate, Tirur. By the said judgment, the learned Magistrate had found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. He was convicted and sentenced to undergo simple imprisonment for six months under Section 138 of the Negotiable Instruments Act. The accused was further directed to pay Rs.5,55,000/- to the complainant as compensation under Section 357 Cr.P.C. and in default of payment to undergo simple imprisonment for three months. The appellate court upheld the conviction of the accused for the offence under Section 138 of the N.I. Act and the sentence of simple imprisonment for six months awarded by the learned Magistrate and interfered with the payment of compensation of Rs.5,55,000/- under Section 357 Cr.P.C. which was set aside. Accordingly, the appeal was partly allowed confirming the conviction and sentence and reversing the order to pay compensation under Section 357 Cr.P.C. THIS revision petition has been preferred by the complainant challenging the reversal of the order to pay compensation under Section 357 Cr.P.C. in favour of the complainant.

(2.) HEARD the learned counsel for the revision petitioner and also the learned Public Prosecutor.

(3.) THE learned Sessions Judge has bye-passed this decision and has misinterpreted the settled position by relying on the decision of the Apex Court in Hari Krishnn and State of Haryana v. Sukhbir Singh & Others, AIR 1988 S.C.2127 that the ability of the accused is a very material and relevant fact to be looked into while awarding compensation under Section 357(1) or (3)Cr.P.C. In these circumstances, I find that an interference of this Court is absolutely necessary in the interest of justice in this revision petition. In an offence like this deterrent substantive sentence of simple imprisonment for six months is unnecessary and can be avoided and the complainant can be adequately compensated. THE cheque amount can be awarded as compensation in favour of the revision petitioner/complainant and a default sentence also can be imposed against the accused.