K.P.Vinodkumar Vs. State of Kerala - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE5H DAY OF SEPTEMBER201314TH BHADRA, 1935 Crl.Rev.Pet.No. 1783 of 2013 () ------------------------------- AGAINST THE JUDGMENT

IN CRA5352010 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD DATED1106-2013 AGAINST THE JUDGMENT

IN ST4232006 of JUDICIAL FIRST CLASS MAGISTGRATE, MANNARKAD DATED3108-2010 ------ PETITIONER/APPELLANT/ACCUSED : ---------------------------- K.P.VINODKUMAR, AGED49YEARS S/O. BALAKRISHNAN, KALATHARAIKKAL, PARAPPURATH HOUSE,MANNARKKAD, PALAKKAD DISTRICT-678 582. BY ADVS.SMT.N.C.SALINI SRI.C.RADHAKRISHNAN RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT : ------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

2. KURYAKOSE , AGED53YEARS S/O. JOSEPH, KURUMATTATHIL VEEDU, ERUMBAKACHOLA KANHIRAPPUZHA, POTTASSERI AMSOM DESOM MANNARKKAD TALUK, PALAKKAD DISTRICT. R1 BY PUBLIC PROSECUTORLIJU V. STEPHEN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON0509-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: BP K. HARILAL, J.

------------------- Crl.R.P. No.1783 of 2013 ------------------------------- Dated this the 5th day of September, 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.535 of 2010 on the files of the Additional Sessions Judge, Adhoc-III (Fast Track Court-III), Palakkad. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence, passed in S.T.No.423 of 2006 on the files of the Judicial First Class Magistrate's Court, Mannarkkad. According to the impugned judgment, the Revision Petitioner is sentenced to undergo imprisonment till rising of the court. He shall pay compensation of Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand only) forthwith, in default of payment of compensation he shall undergo simple imprisonment for a further period of three months. Crl.R.P. No.1783 of 2013 2 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 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 Crl.R.P. No.1783 of 2013 3 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 five months.

4. 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 Crl.R.P. No.1783 of 2013 4 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 compensation within five months, I am inclined to grant five 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 imprisonment for one day till rising of the court. ii. The Revision Petitioner shall pay Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand only) to the complainant/2ndrespondent as compensation within a period of five months from today. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple Crl.R.P. No.1783 of 2013 5 imprisonment as ordered above on or before 05/02/2014 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