Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 30TH DAY OF JULY 2013 8TH SRAVANA, 1935 Crl.Rev.Pet.No. 1407 of 2013 () -------------------------------- AGAINST THE JUDGMENT IN CRL.A. 261/2011 of ADDITIONAL DISTRICT & SESSIONS COURT (AD HOC)-I, PALAKKAD. AGAINST THE JUDGMENT IN STC.NO.1321/09 of J.M.F.C.-I, PALAKKAD. REVISION PETITIONER(S)/APPELLANT/ACCUSED: ----------------------------------------- N.BALAN, S/O.ARUMUGHAN, MANAGING TRUSTEE, MAHA GANAPATHY MANDIR TRUST, RESIDING AT 11/392, SREE GOKULAM, KALATHIL VEEDU, CHITTUR ROAD, THIRUVALATHUR AMSOM, KODUMBU, PALAKKAD DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENTS/RESPONDENTS/NOT PARTY/COMPLAINANT: --------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
2. V.PAULRAJ, S/O.VEERAPATHIRAN, RESIDING AT 8/148, INDRANI NAGAR, CHUNNAMBUTHARA, PALAKKAD-678 001. R1 BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HARILAL, J.
------------------------------------------------------ Crl.R.P. No. 1407 of 2013 ------------------------------------------------------ Dated this the 30th day of July, 2013 ORDER This Revision Petition is filed challenging the concurrent findings of conviction entered and the sentence imposed on the Revision Petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') in Criminal Appeal No.261/11 on the files of the Additional District & Sessions Judge, Ad hoc-I, Palakkad Division. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.1321/09 on the files of the Judicial First Class Magistrate's Court-I, Palakkad. According to the impugned judgment, the Revision Petitioner is sentenced to undergo Crl.R.P. No. 1407 of 2013 -:
2. :- simple imprisonment for a period of three months. He is further directed to pay a compensation of Rs.3,00,000/- to the complainant under Sec.357(3) of the Cr.P.C. and in default of payment of compensation, he shall undergo simple imprisonment for a further period of three months.
2. The learned counsel for the Revision Petitioner reiterated the contentions which were raised before the courts below and got rejected concurrently. The learned counsel urged for a re-appreciation of evidence once again, which is not permissible under the revisional jurisdiction unless any kind of perversity is found in the appreciation of evidence. The Revision Petitioner failed to point out any kind of perversity in the appreciation of evidence. The courts below had concurrently found that the complainant/2nd respondent had successfully discharged initial burden of proving execution and issuance of the cheque; whereas the Revision Petitioner had failed to rebut the presumption under Section 118(a) and 139 of the N.I. Act which stood in favour of the 2nd respondent. So also, it Crl.R.P. No. 1407 of 2013 -:
3. :- is found that the debt due to the 2nd respondent was a legally enforceable debt and Ext.P1 cheque was duly executed and issued in discharge of the said debt. I do not find any kind of illegality or impropriety in the said findings or perversity in appreciation of evidence, from which the above findings had been arrived. Therefore, I am not inclined to re-appreciate entire evidence once again and I confirm the concurrent findings of conviction.
3. The counsel for the Revision Petitioner submits that challenge under this Revision is confined to sentence only. The learned counsel for the Revision Petitioner submits that the sentence imposed on the Revision Petitioner is disproportionate with the gravity and nature of the offence. He further submits that the Revision Petitioner is willing to pay the compensation as ordered by the court below; but he is unable to raise the said amount forthwith due to paucity of funds.
4. Though notice had been served on the complainant/2nd respondent, the 2nd respondent has not Crl.R.P. No. 1407 of 2013 -:
4. :- chosen to appear and contest the revision on merits. The revision petitioner is given six months time to pay the compensation.
5. Similarly, the substantive sentence imposed on the revision petitioner is too harsh and excessive. The learned counsel for the revision petitioner prayed for setting aside the sentence of imprisonment also. If the revision petitioner is incarcerated for a period as ordered by the courts below, the entire family will put put in great hardship.
6. The Supreme Court, in the decision in Kaushalya Devi Massand v. Roopkishore (AIR 201.SC 2566), held that the offence under Section 138 of the N.I. Act is almost in the nature of civil wrong which has been given criminal overtone, and imposition of fine payable as compensation is sufficient to meet the ends of justice. Further, in Vijayan vs. Baby (2011(4) KLT 355), Supreme Court held that the direction to pay the compensation by way of restitution in regard to the loss on account of the dishonour of the cheque should be practical and realistic. So, in a prosecution under Crl.R.P. No. 1407 of 2013 -:
5. :- Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect.
7. Having regard to the nature and gravity of the offence, in the light of the decisions quoted above and submission made at the Bar, expressing willingness to pay the compensation within six months, I am inclined to grant six months time to pay the compensation. Similarly, the substantive sentence of imprisonment is reduced and modified to simple imprisonment for one day till rising of the court. Consequently, this Revision Petition is liable to be disposed of subject to the following terms. i. The Revision Petitioner shall undergo simple imprisonment for one day till rising of the court. ii. The Revision Petitioner shall pay a compensation of Rs.3,00,000/- to the complainant/2nd respondent within a period of six months from today. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 13/01/2014 with sufficient Crl.R.P. No. 1407 of 2013 -:
6. :- proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. The Criminal Revision Petition is disposed of accordingly. Sd/- (K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge