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. 1798 of 2013 -------------------------------- CRL.APPEAL NO. 61/2012 OF ADDL.SESSIONS COURT (ADHOC III), (FAST TRACK COURT III), PALAKKAD DATED1405-2013 ... CC.NO.287/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, PALAKKAD DATED1901/2012 ... REVISION PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------------------------------------------------- K.K. MUSTHAFA, S/O.KUNHUKUTTY, KAVARAKUNNIL VEEDU, POOTHANUR, MUNDUR, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: ---------------------------------------------------------------------------------------------- 1. M.SIVAN, S/O.MANICKAN, ADIRTHYAPURAMM, PALLIPPURAM.P.O., PALAKKAD DISTRICT, PIN678006.
2. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 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: Kss K.HARILAL, J.
----------------- CRL.R.P.NO.1798 OF2013------------------------------- 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.61 of 2012 on the files of the Additional Sessions Court, Ad hoc-III (Fast Track Court -III), Palakkad. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence, passed in C.C.No.287 of 2010 on the files of the Judicial First Class Magistrate's Court-II, Palakkad. According to the impugned judgment, the Revision Petitioner is sentenced to undergo imprisonment till rising of the court. He shall pay compensation of Rs.75,000/- (Rupees Seventy Five Thousand only) forthwith in default of payment of compensation he shall CRL.R.P.NO.1798 OF20132 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/1st 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 1st respondent. So also, it is found that the debt due to the 1st 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 CRL.R.P.NO.1798 OF20133 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 within five 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 sufficient to meet the ends CRL.R.P.NO.1798 OF20134 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 five months, I am inclined to grant five 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.75,000/- (Rupees Seventy Five Thousand only) to the complainant/1st respondent within a period of five CRL.R.P.NO.1798 OF20135 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 03/03/2014 with sufficient 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 MJL