Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE23D DAY OF JANUARY20143RD MAGHA, 1935 Crl.Rev.Pet.No. 1418 of 2013 () ---------------------------------------- AGAINST THE JUDGMENT
IN CRL.A.NO. 58/2012 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM DATED1708-2012 AGAINST THE JUDGMENT
IN CC NO.720/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOCHI DATED2212-2011 REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- K.X.AUGUSTINE, AGED63YEARS S/O.XAVIER, KODIPARAMBIL HOUSE, AANDIKKADAVU P.O., KANDAKKADAVU, KOCHI. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRA KRISHNAN RESPONDENTS/RESPONDENTS/COMPLAINANT/STATE: ------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
2. JOSEPH VINEESH T.A. S/O.ANTONY, THEKKEKALATHINKAL HOUSE, NEAR LEGI THEATRE CHELLANAM SOUTH P.O., KOCHI-8 REPRESENTED BY POWER OF ATTORNEY HOLDER, T.K.ANTONY, S/O.KAIPPARI, THEKKEKALATHUNGAL HOUSE, SOUTH CHELLANAM P.O., KOCHI. R1 BY PUBLIC PROSECUTOR SRI.ROY THOMAS R2 BY ADV. SRI.M.R.SARIN PANICKER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON2301-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MJL K. HARILAL, J.
---------------------- Crl.R.P. No.1418 of 2013 --------------------------- Dated this the 23rd 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.58 of 2012 on the files of the Additional Sessions Judge, (Adhoc-I) Ernakulam. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence, passed in C.C.No.720 of 2010 on the files of the Judicial First Class Magistrate's Court-I, Kochi. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and to pay fine of Rs.1,00,000/- (Rupees One Lakh only), in default of payment of fine, Crl.R.P. No.1418 of 2013 2 to undergo simple imprisonment for one month. If the fine amount is realised, it shall be paid to the complainant/2nd respondent as compensation under Section 357(1)(b) of 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/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.1418 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 he is unable to raise the said amount forthwith due to paucity of funds. But he is ready to pay the compensation within six 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 Crl.R.P. No.1418 of 2013 4 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.
5. The imposition of fine will stand converted to compensation directly payable to the complainant/2nd respondent. 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 six months, I am inclined to grant six 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 Crl.R.P. No.1418 of 2013 5 imprisonment for one day till rising of the court. ii. The Revision Petitioner shall pay a compensation of Rs.1,00,000/-(Rupees One Lakh only) to the complainant/2nd respondent within a period of six months from today, under Section 357 (3) of 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 23/07/2014 with sufficient proof to show payment of compensation . iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of one month. The Criminal Revision Petition is disposed of accordingly. Sd/- K.HARILAL JUDGE MJL