IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE10H DAY OF JANUARY201420TH POUSHA, 1935 Crl.Rev.Pet.No. 2797 of 2006 ( D) --------------------------------- CRL.A4012005 of ADDITIONAL DISTRICT & SESSIONS COURT(ADHOC-III), KOLLAM CC2061998 of J.M.F.C., SASTHAMCOTTA REVISION PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------------------------------------------------ B.JAYAKUMAR, SREEMANDIRAM, MARUTHOOR KULANGARA NORTH KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADVS.SRI.GRASHIOUS KURIAKOSE (SR.) SRI.A.MOHAMMED RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. JAYAMOHAN, JAYA VIHAR, THOTTAMUKHAM, THEKKEMYNAGAPPALLY MYNAGAPPALLY VILLAGE, KOLLAM DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. ROY THOMAS R2 BY ADV. SRI.J.OM PRAKASH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON1001-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No.2797 2006 () APPENDIX REVN. PETITIONER'S EXHIBITS: ANNEXURE-A1: TRUE COPY OF THE AFFIDAVIT DT.30.8.2003 IN C.C.206/98 BFORE THE J.F.M.C., SASTHAMCOTTA ANNEXURE-A2: TRUE COPY OF THE CROSS EXAMINATION OF PW1 DT.7.2.04 IN C.C. 206/98 BEFORE THE J.F.M.C., SASTHAMCOTTA ANNEXURE-A3: TRUE COPY OF THE STATEMENT U/S313CR.P.C. IN C.C.206/98 BEFORE THE J.F.M.C., SASTHAMCOTTA RESPONDENT'S EXHIBITS: NIL OKB. TRUE COPY P.A. TO JUDGE K.HARILAL, J.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Crl.R.P. No.2797 of 2006 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 10th day of January, 2014 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.401/2005 on the files of the court of the Additional District & Sessions Judge (Ad hoc- III), 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.206/1998 on the files of the Judicial First Class Magistrate's Court, Sasthamcotta. According to the impugned judgment, the Revision Petitioner was sentenced to undergo simple imprisonment for one year and to pay to the complainant `1 lakh as compensation and in default, to undergo simple imprisonment for 6 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 Crl.R.P.2797/06 :2: 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 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.P2 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 at. 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 Crl.R.P.2797/06 :3: 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 two months. The learned counsel for the 2nd respondent submits that the cheque amount was `4 lakhs; but the compensation awarded was only `1 lakh. So also, the cheque was issued in the year 1998. Therefore, the revision petitioner had already availed of sufficient time to pay the compensation. So, the substantive sentence of imprisonment can be modified and reduced in lieu of enhancing the compensation, considering the lapse of more than 13 years.
4. I find some force in the argument advanced by he learned counsel for the 2nd respondent. Considering the long lapse of time and also the nature and gravity of the offence under Section 138 of the N.I. Act, the substantive sentence of simple imprisonment for one year will stand reduced and modified to simple imprisonment for one day till the rising of the court and the compensation amount will stand enhanced to `2 lakhs in lieu of reduction in the substantive sentence of imprisonment.
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 Crl.R.P.2797/06 :4: sentence of imprisonment also. If the revision petitioner is incarcerated for a period as ordered by the courts below, the entire family will be put in great hardship.
6. The Supreme Court, in the decision in Kaushalya Devi Massand Vs. Roopkishore (AIR2011SC2566, 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, the 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.
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 two months, the revision petitioner is given two 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, Crl.R.P.2797/06 :5: 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 `2,00,000/- lakhs (Rupees Two lakhs only) to the 2nd respondent/complainant within a period of two months from today. If the revision petitioner had deposited any amount towards compensation in compliance with the direction of this Court, the same shall be given credit to and balance alone needs to be paid as compensation and the 2nd respondent/complainant is allowed to realise such deposit, if any. iii. The Revision Petitioner shall appear before the Trial Court to suffer the substantive sentence of simple imprisonment as ordered above on or before 10.3.2014 with sufficient proof to show payment of compensation. iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of 3 months. The Revision Petition is disposed of accordingly. Sd/- (K.HARILAL, JUDGE) okb.