Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE1T DAY OF OCTOBER20139TH ASWINA, 1935 Crl.Rev.Pet.No. 1806 of 2013 () -------------------------------- AGAINST THE JUDGMENT
IN CC852011 of J.M.F.C.-I, KOZHIKODE DATED2910-2012 AGAINST THE JUDGMENT
IN CRL.A.NO. 689/2012 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC)-II, KOZHIKODE DATED1306-2013 REVN.PETITIONER/APPELLANT/ACCUSED : ----------------------------------- A.SIVAPRASAD, AGED41YEARS, S/O. KESAVAN, 12/552, "HARI KRIPA", ARAYACHATTAKATH HOUSE, BEYPORE P.O., CALICUT. BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN RESPONDENT/RESPONDENT/COMPLAINANT : ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. SREE GOKULAM CHIT & FINANCE PVT. LTD., NO.66, ARCOT ROAD, CHENNAI, REPRESENTED BY LEGAL ASSISTANT, SAVITHA K.V., W/O. K.V.THYAGARAJ, DIVISIONAL OFFICE, TECHNO TOP BUILDING, VAIKOM MUHAMMED BASHEER ROAD, CALICUT-1. R1 BY PUBLIC PROSECUTOR SRI. REJI JOSEPH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON0110-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HARILAL, J.
------------------------------------------------------ Crl.R.P. No. 1806 of 2013 ------------------------------------------------------ Dated this the 1st day of October, 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.689/12 on the files of the Additional Sessions Judge, Fast Track (Ad hoc)-II, Kozhikode. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.85/11 on the files of the Judicial First Class Magistrate's Court-I, Kozhikode. According to the impugned judgment, the Revision Petitioner is sentenced to Crl.R.P. No. 1806 of 2013 -:
2. :- undergo imprisonment till rising of the court and to pay a sum of Rs.2,80,000/- as compensation to the complainant under Sec.357(3) of the Cr.P.C. In default, to undergo simple imprisonment for a period of six 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 is found that the debt due to the 2nd respondent was a legally enforceable debt and Ext.P4 cheque was duly Crl.R.P. No. 1806 of 2013 -:
3. :- 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 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. But he is ready to pay the compensation/fine within six months.
4. The Supreme Court, in the decision in Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC2566, 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 Crl.R.P. No. 1806 of 2013 -:
4. :- sufficient to meet the ends of justice. Further, in Vijayan vs. Baby (2011(4) KLT355, 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 Section 138 of the N.I. Act, the compensatory aspect of remedy should be given much priority over punitive aspect.
5. 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. 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.2,80,000/- (Rupees two lakhs and eighty thousand only) to the complainant/2nd respondent within a period of six months from today under Sec.357(3) of the Cr.P.C. Crl.R.P. No. 1806 of 2013 -:
5. :- iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 2/4/2014 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of six months. The Criminal Revision Petition is disposed of accordingly. Sd/- (K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge