Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY,THE8H DAY OF NOVEMBER201317TH KARTHIKA, 1935 Crl.Rev.Pet.No. 2068 of 2013 () ------------------------------------------- AGAINST THE JUDGMENT
IN CRA1392011 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM AGAINST THE JUDGMENT
IN CC19122008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PUNALUR -------------- PETITIONER(S)/(APPELLANT-ACCUSED): ----------------------------------------------------------- VIMALA DEVI, AGED47 RESIDING AT PADMALAYAM, PANAYAM CHERRY, ANCHAL P.O. KOLLAM, 691306. BY ADV. SRI.HARISH GOPINATH RESPONDENTS/(RESPONDENTS-STATE & COMPLAINANT): ------------------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. THE SECRETARY PATHANAPURAM PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.Q-995 PUNALUR, KOLLAM-691305. R1 BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH R2 BY ADVS. SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON0811-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PJ K. HARILAL, J.
---------------------- Crl.R.P. No.2068 of 2013 ------------------------------ Dated this the 8th day of November, 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.139 of 2011 on the files of the Additional Sessions Judge, Adhoc -II, Kollam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.1912 of 2008 on the files of the Judicial First Class Magistrate's Court-III, Punalur. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.90,000/- (Rupees Ninety Thousand only) to the complainant/2nd respondent under Section 357(3) Cr.P.C. In default of Crl.R.P. No.2068 of 2013 2 payment of compensation the Revision Petitioner shall undergo simple imprisonment for a further period of three months for the offence under Section 138 of the Negotiable Instruments Act.
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.P1 Crl.R.P. No.2068 of 2013 3 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 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 she is unable to raise the said amount forthwith due to paucity of funds. But she is ready to pay the compensation within five months.
4. 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 Crl.R.P. No.2068 of 2013 4 Revision Petitioner is incarcerated for a period as ordered by the courts below, the entire family will put in great hardship.
5. 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 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.
6. The learned counsel for the complainant/2nd respondent submits that the cheque was issued in the year 2008 and the Revision Petitioner had already availed sufficient time to pay of the debt. So a short time alone Crl.R.P. No.2068 of 2013 5 can be granted to pay the compensation. In view of the above submission also the Revision Petitioner is given five months time to pay the compensation. 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. Similarly, the substantive sentence of imprisonment for three months 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.90,000/- (Rupees Ninety Thousand only) to the complainant/2nd respondent within a period of five months form today. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple Crl.R.P. No.2068 of 2013 6 imprisonment for one day as ordered above on or before 08/04/2014 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