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M/s. Kala Fashion Fabrics, Proprietary Concern Rep. by its Proprietor R. Giridhar v/s State of Kerala Rep. by its Public Prosecutor & Another

    Crl.M.A. Nos. 2015 of 2017, 2153 of 2017 in Crl.R.P. Nos. 1149 of 2012, 1150 of 2002 & Crl.MC. Nos. 5830 of 2016, 5834 of 2016

    Decided On, 12 April 2017

    At, High Court of Kerala

    By, THE HONOURABLE MR. ALEXANDER THOMAS

    For the Petitioner: Lal K. Joseph, M.U. Kuriakose, V.S. Shiraz Bava, Joseph Kurian Vallamattam, M.B. Soori, A.A. Ziyad Rahman, K.I. Salim, Advocates. For the Respondents: R1, Saigi Jacob Palatty, Saigi Jacob Palatty, Public Prosecutors, R2, Pirappancode V.S. Sudhir, Jelson J. Edampadam, Advocates.



Judgment Text

1. Crl.R.P.No. 1149/2002 has arisen out of the impugned judgment dated 27.5.2002 of the I Additional Sessions Court, Thiruvananthapuram in Crl.A.No.241/1996 which in turn arises out of judgment dated 18.7.1996 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram, in S.T.No.712/2003.

2. Crl.RP.No. 1150/2002 has arisen out of the impugned judgment dated 27.5.2002 of the Court of I Additional Sessions Judge, Thiruvananthapuram, in Crl.A.No.240/1996, which in turn has arisen out of judgment dated 18.7.1996 on the file of the Chief Judicial Magistrate Court, Thiruvananthapuram, in S.T.No.711/1993.

3. The applicant herein is the complainant in the aforestated proceedings for offence punishable under Sec. 138 of the Negotiable Instruments Act, alleged against the 2nd respondent herein (accused).

4. In S.T.No.712/1993 (as affirmed in Crl.A.No.241/1996), the accused was convicted for the above said offence and was sentenced to pay a fine of Rs.45,000/- and in default thereof to undergo simple imprisonment for a period of 3 months, etc. The said concurrent verdicts of conviction and sentence has been confirmed by this Court in the order dated 28.5.2015 in Crl.RP.No. 1149/2002.

5. In S.T.No.711/1993 (as affirmed in Crl.A.No.240/1996) the accused therein has also been convicted for the offence under Sec. 138 of the N.I. Act and sentenced to pay a fine of Rs. 1,30,000/- and in default thereof the accused was sentenced to undergo simple imprisonment for a period of 3 months, etc. The above said concurrent verdicts in the matter of conviction and sentence has also been confirmed by this Court in the order dated 28.5.2015 in Crl.R.P.No. 1150/2002.

6. It is now submitted by the complainant and accused that the respective accused has paid the requisite fine amount of Rs.45,000/- in S.T.No.712/1993 as well as the fine amount of Rs.1,30,000/- in S.T.No. 711/1993 and the said fine amounts have been remitted before the Chief Judicial Magistrate Court, Thiruvananthapuram. 

7. The Office of the Chief Judicial Magistrate Court, Thiruvananthapuram, has also now telephonically informed the Registry that the above said fine amounts in these cases have been deposited in the court account.

8. In the respective judgments/orders of the trial court/lower appellate court as well as that of this Court (revisional order), it has been omitted to mention that the above said fine amount should be disbursed to the complainant in terms of Sec.357(1)(b) of the Cr.P.C. Therefore, the Office of the Magistrate Court by the orders impugned in these applications have not disbursed the said respective amounts to the complainant in these cases. The cheque amount in S.T.No.712/1993 is Rs.40,000/- and the cheque amount in S.T.No.711/1993 is Rs. 1,25,000/-.

9. In a similar situation involving Crl.A.No.584/2009 against judgment of acquittal for offence under Sec. 138 of the N.I.Act, this Court had allowed the Crl.A. and had convicted the accused and had also imposed the requisite fine and omitted to mention that the fine amount should be disbursed to the complainant in terms of Sec.357(1) (b) of the Cr.P.C. Subsequently, the appellant/complainant therein had moved an application as Crl.M.A.No.1595/2017 in the disposed Crl.A praying for this Court's direction that the fine amount in question may be disbursed to the complainant in terms of Sec.357(1)(b) of the Cr.P.C. This Court as per order dated 22.3.2017 in Crl.M.A.No. 1595/2017 in Crl.A.No.584/2009, has allowed the said application by directing the trial court to disburse the amount covered by the fine deposit to the complainant therein as compensation in terms of Sec.357(1)(b) of the Cr.P.C.

10. A Division Bench of this Court in the judgment in the case Jully Reynold v K.J.Manuel & anr. reported in 2004 Vol.122 CC 758 = 2003 (3) KLT 439 dealt with a case of a private complaint for offence under Sec. 138 of the N.I.Act wherein the petitioner-accused therein was convicted and sentenced to undergo simple imprisonment for 2 months and ordered to pay compensation of Rs.32,000/- to the complainant as well as separate compensation amount of Rs.2,000/- to the Government as it had incurred expenses in the complaint filed. The appeal against the said order was dismissed. This Court in the above said reported judgment had dealt with a revision petition which arose in that case. As regards the direction given by the trial court to award separate compensation of Rs.2,000/- to the Government, this Court held that the expenditure incurred by the State is for administration of justice and would not come either within sub-sec.(1) or sub-sec.(3) Sec.357 of the Cr.P.C for it to be compensated and the act which became an offence under Sec. 138 of the N.I.Act was the dishonour of a cheque issued by the petitioner to the respondent and it would be the respondent who had suffered loss or injury due to the act of the petitioner-accused to claim the compensation and in such a case where the Government had not suffered any loss on account of the dishonour of the cheque, there arose no question of paying any compensation to the Government or State under Sec.357(3) of the Cr.P.C. The Division Bench of this Court in Jully Reynold's case (supra) has also placed reliance on the judgment of the Apex Court in Hari Kishan & State of Haryana v. Sukhbir Singh reported in AIR 1988 SC 2127 wherein it was held that the compensation envisaged in Sec.357(3) is to the victims, who have suffered by the act of the accused, to reassure the former that he/she has not been forgotten in the criminal judicial system and it is a measure of responding appropriately to crime as well as of reconciling the victim with the offender and it is indicated as a constructive approach to the crime. It will be profitable to refer to the judgment in Jully Reynold's case (supra) which reads as follows (see KLT report).-

'4. When the revision petition came up for before the learned Single Judge, the matter was referred to a Division Bench. The learned Judge doubted the decision of this Court in Varghese v. State of Kerala 2002 (1) KLT488, wherein it has been held that in a case under S. 138 of the Negotiable Instruments Act, there arises no question of payment of compensation under S. 357(3) to the State. That decision is doubted raising a question by the learned Single Judge as follows, Can the expression the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced (as employed in S. 357(3) of Cr.P.C.) take in only the injured person/the victim of the crime? In the reference order, it is also observed as follows,

"10. ……. Undoubtedly it is one of the primary and primordial duty of the State to prevent crimes and prosecute the offenders. A major chunk of the revenue of the State is spent in such prosecution of the offenders in order to achieve and ensure harmony in a crime free society. It is of course the duty of the State; but the State is forced to suffer expenses in such prosecution because the offender commits the crime. Merely because it is duty of the State to prosecute the offender, it does not mean that the State does not suffer loss/expenses in the prosecution of the offender for the crime committed by him. I am unable to accept the reasoning that merely because it is the duty of the State to prosecute the offender, the State does not suffer any loss in such prosecution which is necessitated by the crime committed by the offender."

5. The learned Judge was also of the view that "if under S. 357(1), the State can be granted compensation for expenses incurred in prosecuting the offender, I am at a loss to understand why such a direction cannot be issued in favour of the State under S.357(3) of the Cr.P.C. I am in these circumstances of the opinion that the expression 'the person who has suffered any loss or injury' must necessarily include not only the micro person - the individual victim but also the macro person - the State".

6. As already mentioned above, the case on hand is one arisen under S. 138 of the Negotiable Instruments Act. As already noticed, it was a private complaint wherein the complainant had engaged a private counsel. The accused was also represented by a private counsel. The State did have no role at all in prosecuting the case. Therefore, the State did not incur any expenditure in prosecuting the offender. Necessarily, the question posed by the learned Judge in the order does not arise at all in the case on hand, where the State did not incur any loss at all for prosecuting that case. The expenditure incurred by the State for administration of justice does not come either within sub-s. (1) or within sub-s (3) of S.357 of the Code, to be compensated.

7. Even otherwise also, the case does not come under S.357(3) to order compensation to Government or the State. The Government or the State has not "suffered any loss or injury by reason of his act for which the accused person has been so sentenced". The act which became an offence under S. 138 of the Negotiable Instrument Act was the dishonour of a cheque issued by the revision petitioner to the respondent. If at all one had suffered any loss or injury on account of such act of the revision petitioner, it is the respondent and none else. The Government has not suffered any loss on account of dishonour of the cheque. The Supreme Court has in the decision reported in Hari Kishan & State of Haryana v. Sukhbir Singh & Ors., AIR 1988 SC 2127, made it clear that the compensation envisaged in S. 357(3) is to the victims who has suffered by the act of the accused, to reassure the former that he/she has not been forgotten in the criminal judicial system. It is a measure of responding appropriately to crime as well as of reconciling the victim with the offender, It is indicated as a constructive approach to the crime. The Supreme Court has set forth a guideline that compensation shall be determined taking into account the nature of the crime, the justness of the claim by the victim and the ability of the accused to pay and that the liability of several accused in a case shall vary depending upon the act of each accused.

8. In such circumstances, there arises no question of ordering compensation in terms of S. 357(3) of the Code, to the Government or State in a case under S. 138 of the Negotiable Instruments Act.

When the State had not incurred any loss by reason of the act of the accused there arises no question of paying any compensation to the Government or State under S. 357(3) of the Code of Criminal Procedure, 1973. Accordingly, that part of the order of the learned Magistrate directing payment of Rs. 2000/- to Government, as confirmed by the Additional Sessions Judge, is set aside. That being the only issue agitated in this case, nothing further remains to be decided. The impugned judgment is confirmed subject to the aforesaid modification.'

The above said case dealt with by the Division Bench in Jully Reynold's case (supra) has not dealt with an identical or similar factual circumstances but it was only for considering the issue as to whether compensation under Sec.357(3) of the Cr.P.C could be awarded by the trial court to the State while convicting an accused for the offence punishable under Sec. 138 of the N.I.Act. But the substance and essence of the above said observations and considered views rendered by the Division Bench are also relevant while dealing with the present case. Due to the present stand taken by the courts below, the entire fine amounts will have to be enjoyed by the State and the private complainant who has laboured hard for securing the conviction in the matter of dishonour of the cheque in question is left with no compensation whatsoever.

11. In this context it would be relevant to note the judgment of the Apex Court in the case Damodar S.Prabhu v. Sayed Babalal reported in AIR 2010 SCC 1907 wherein it was held that in case of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. So also, the Apex Court in the case Kaushalya Devi v. Roopkishore reported in AIR 2011 SC 2566 has held that the offence of dishonour of cheques under Sec. 138 of the N.I.Act is essentially a civil wrong which has been given criminal overtones and the gravity of the complaint cannot be equated with an offence under IPC and instead of jail sentence, imposition of fine payable as compensation was found sufficient to meet the ends of justice. Now, the case law on the point regarding the emphasis with compensatory aspect over the punitive element in Sec. 138 offences are in legion. Suffice it to say, the whole approach of the courts is to ensure compensation to the complainant, who could succeed to secure a conviction against an accused under Sec. 138 of the N.I.Act and the Apex Court has time and again held that the fine amount payable as compensation would be sufficient ordinarily to meet the ends of justice in cases involving Sec. 138 offences.

12. The complainant in S.T.No.711/1993 has filed Crl.M.A.No.2015/2017 in Crl.RP.No. 1149/2002 for directions to the trial court to release the fine amount deposited by the accused to the petitioner as compensation in terms of Sec.357(1)(b) of the Cr.P.C. The said complainant has filed Crl.M.C.No.5830/2016 for directions from this Court so that the trial court disburses the fine amount deposited in that case to the complainant as compensation in terms of Sec.357(1)(b) of the Cr.P.C and the prayer therein is made in terms of the enabling provisions conferred on this Court as per Sec.482 of the Cr.P.C.

13. The complainant in S.T.No.712/1993 has filed Crl.M.A.No.2153/2017 in Crl.R.P.No. 1150/2002 for directions to the trial court to disburse the amount covered in that case to the complainant as compensation. The said complainant in S.T.No.712/1993 has also filed Crl.M.C.No.5834/2016 for necessary directions by taking recourse to the remedy available under Sec.482 of the Cr.P.C. During the course of hearing of these matters initially, Sri.Pirappancode V.S.Sudhir, learned counsel appearing for the 2nd respondent - accused brought to the notice of this Court that apart from these criminal proceedings in S.T.No.711/1993, the complainant had also filed a civil suit as O.S.No.693/1996 on the file of the II Additional Sub Court, Thiruvananthapuram, for recovery of money covered by the cheque in that case along with interest thereon and the suit was dismissed and that the complainant herein has preferred R.F.A.No.237/2005 before this Court, which is pending. Further, it is also pointed out by the learned counsel appearing for the accused that the complainant in S.T.No.712/1993 has filed O.S.No.283/1998 before the II Additional Sub Court, Thiruvananthapuram, for recovery of money covered by the above said cheque along with interest thereon and the said suit was initially dismissed and in the appeal suit, the matter has been remitted to the trial court for consideration afresh and the said suit is pending as O.S.No.283/1998 before the above said court, etc. In the light of these factual aspects, Sri.Pirappancode V.S.Sudhir, learned counsel appearing for R-2 (accused) submits that the complainant should not be permitted to enjoy any unjust enrichment in the process of getting compensation amount through the court below.

Sri.Lal K.Joseph, learned counsel appearing for the petitioner-complainant in the Crl.M.Cs submits on the basis of instructions of his party that in case this Court directs the trial court to disburse fine amount as compensation in terms of Sec.357(1)(b) of the Cr.P.C to the complainant, then his party would undertake that the said respective amounts shall be treated as set off against his claims before the civil court and further that on actual receipt of the said moneys from the criminal trial court, respective complainants will undertake that they would file appropriate application or motion for the

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pending R.F.A as well as in the pending O.S for settling those matters with the accused herein through Adalat process and that in the Adalat process, the complainant will take steps to withdraw those civil proceedings. It is pointed out by the counsel appearing for the complainant that his party has been advised to move Adalat process so that the parties can at least seek refund of court fee on withdrawal of the appeal/suit concerned. In the light of these submissions, the learned counsel appearing for the respondent-accused has no serious objection in this Court granting requisite directions in that regard. 14. Accordingly, in the interest of justice, it is ordered that the Chief Judicial Magistrate Court will ensure that the respective fine amounts already deposited in S.T.No.711/1993 and S.T.No.712/1993 coming to Rs.45,000/- and Rs. 1,30,000/- are disbursed to the respective complainants in these cases as compensation in terms of Sec.357(1)(b) of the Cr.P.C. All the formalities in this regard should be completed by the trial court within a period of 2 weeks from the date of production of a certified copy of this order. If necessary orders in this regard are not passed by virtue of the enabling powers under Sec.482 of the Cr.P.C, it will amount to grave injustice on the complainant, who could succeed in his criminal complaint, but who could not secure any compensation whatsoever. However, it is also clarified that this order is being passed by this Court, after recording the above said undertakings made by these complainants, for not pressing any further claims in the civil proceedings, after receipt of the above compensation amounts from the trial court. With these observations and directions, the Crl.M.As and Crl.M.Cs will stand finally disposed of.
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