Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE19H DAY OF DECEMBER201328TH AGRAHAYANA, 1935 Crl.Rev.Pet.No. 2451 of 2013 () --------------------------------------- AGAINST THE JUDGMENT
IN CRL.APPEAL NO.308/2007 of ADDITIONAL DISTRICT AND SESSIONS COURT (AD-HOC) FASTRACK COURT-III, PATHANAMTHITTA DATED2411-2008 AGAINST THE JUDGMENT
IN ST NO.259/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,PATHANAMTHITTA DATED3110-2007 REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- RAJU, AGED50YEARS, S/O.JOHN, PALAMOOTTIL HOUSE, PERUNADU P.O. PERUNADU, PATHANAMTHITTA. BY ADVS.SRI.K.SHAJ SRI.SAJJU.S SRI.RENJIT GEORGE SMT.ANJU MOHAN SRI.R.ARUN SRI.PRAVEEN THOMAS ABRAHAM RESPONDENTS/COMPLAINANT/STATE: -------------------------------------------------------- 1. M.D.BOSE VALLYATHUMANNIL PADINJATTATHIL HOUSE, MUTTATHUKONAM P.O., CHENNEERKARA, PATHANAMTHITTA - 689 645 2. STATE OF KERALA , REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 R2 BY PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON1912-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MJL K. HARILAL, J.
---------------------- Crl.R.P. No.2451 of 2013 ------------------------------ Dated this the 19th day of December, 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.308 of 2007 on the files of the Additional District & Sessions Judge, (Adhoc) Fast Track Court -III, Pathanamthitta. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence, passed in S.T.No.259 of 2006 on the files of the Judicial First Class Magistrate's Court -II, Pathanamthitta. According to the impugned judgment, the Revision Petitioner is sentenced to undergo imprisonment till rising of the court and to pay a fine of Rs.65,000/- and in default of payment of fine to undergo simple imprisonment for three months. If the Crl.R.P. No.2451 of 2013 2 fine amount is remitted or caused to be realised the same shall be paid to the complainant/1st respondent.
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 illegality or Crl.R.P. No.2451 of 2013 3 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 fine within three 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 of Crl.R.P. No.2451 of 2013 4 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 fine within three months, I am inclined to grant three months time to pay the fine. 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 fine of Rs.65,000/-(Rupees Sixty Five Thousand only) within a period of three months from today and the same shall be given to complainant/1st respondent as compensation Crl.R.P. No.2451 of 2013 5 under Section 357(1)(b)Cr.P.C. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 20/03/2014 with sufficient proof to show payment of fine. iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months. v. Warrant pending in execution of the sentence imposed on the Revision Petitioner under the impugned judgment shall be kept in abeyance till 20/03/2014. The Criminal Revision Petition is disposed of accordingly. Sd/-K.HARILAL JUDGE MJL