IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE10H DAYOF JANUARY201420TH POUSHA, 1935 Crl.Rev.Pet.No. 58 of 2014 ------------------------------ CRA NO. 315/2011 OF ADDITIONAL DISTRICT & SESSIONS COURT, MOOVATTUPUZHA DATED3107-2013 ....... CC NO. 282/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM DATED2305-2011 ...... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------------- BIJU P.J.,AGED38YEARS, S/O.YOHANNAN, PUTHENPURACKAL (H), DOUBLE CUTTING, CALVARIMOUNT P.O., IDUKKI. BY ADVS.SRI.JOY THATTIL ITTOOP SRI.A.G.ADITYA SHENOY RESPONDENTS/RESPONDENTS./RESPONDENTS/ COMPLAINANT AND STATE: -------------------------------------------------------------------------- 1. K.L.M. CREDIT SYNDICATE, REPRESENTED BY ITS MANAGER, ABDUL LATHEEF, KUNJANGATTU(H), PALLARIMANGALAM P.O,PIN686675.
2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.S.DILEEP (KALLAR) R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON1001-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss K. HARILAL, J.
-------------------- Crl.R.P. No. 58 of 2014 ------------------------------ 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.315 of 2011 on the files of the Additional District and Sessions Judge, Muvattupuzha. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.282 of 2008 on the files of the Judicial First Class Magistrate's Court, Kothamangalam. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for four months and to pay a fine of Rs.88,000/- under Section 138 of the N.I.Act. In default of payment of fine, the Crl.R.P. No. 58 of 2014 2 Revision Petitioner shall undergo simple imprisonment for a further period of two months. The fine amount, if realised shall be paid in full to the complainant/1st respondent as compensation under Section 357(1) Cr.P.C.
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 Crl.R.P. No. 58 of 2014 3 respondent. So also, it is found that the debt due to the 1st respondent was a legally enforceable debt and Ext.P3 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 he is unable to raise the said amount forthwith due to paucity of funds. But he is ready to pay the fine within five months.
4. Similarly, the substantive sentence imposed on Crl.R.P. No. 58 of 2014 4 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 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 (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, 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 Crl.R.P. No. 58 of 2014 5 aspect.
6. The learned counsel for the respondent submits that cheque was issued in the year 2008 and the Revision Petitioner had already availed of sufficient time to pay off the cheque amount. So a short time alone can be given to pay the fine. 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 fine. Similarly, the substantive sentence of simple imprisonment for four months will stand 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 fine of Rs.88,000/-(Rupees Eighty Eight Thousand only) within a Crl.R.P. No. 58 of 2014 6 period of five months from today and the same shall be given to the complainant/1st respondent as compensation under Section 357(1)(b) of Cr.P.C. If the Revision Petitioner had paid any amount in compliance with the interim order of the appellate court, same shall be given credit to and the balance alone needs to be paid as fine. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 10/06/2014 with sufficient proof to show payment of fine. iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of two months. The Criminal Revision Petition is disposed of accordingly. Sd/-K.HARILAL JUDGE MJL