Vinith Vijayan Vs. State of Kerala - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL MONDAY, THE11H DAY OF NOVEMBER201320TH KARTHIKA, 1935 Crl.Rev.Pet.No. 2144 of 2013 -------------------------------- Crl.A2222012 of IV ADDL.SESSIONS COURT, (ADHOC-II), THODUPUZHA DATED2702-2013 ST912011 of JUDICIAL FIRST CLASS MAGISTRATE -II,THODUPUZHA DATED0511-2012 REVISION PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------------- VINITHA VIJAYAN, AGED25YEARS, W/O DINIL, VALIYAPURACKAL HOUSE, KADUVAL KARA PERUMBAVOOR, ERNAKULAM DISTRICT, PIN:683 542. BY ADV. SRI.K.SUNILKUMAR COMPLAINANT(S)/RESPONDENTS & STATE : ------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM -682031.

2. SREE GOKULAM CHITS AND FINANCE COMPANY(P) LTD., ARCO ROAD, KODAMBAKKOM, CHENNAI-6000024 REP. BY POWER OF ATTORNEY HOLDER MR.C.K.SREEJITH S/O KARUNAKARAN, DIVISIONAL MANAGER. R2 BY ADVS. SRI.RAJ MOHAN R.PILLAI SRI.P.BANI SRI.RAVI KRISHNAN R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON1111-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: stu K. HARILAL, J.

------------------------------------------------------ Crl.R.P. No.2144 of 2013 ------------------------------------------------------ Dated this the 11th day of November, 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. 222/2012 on the files of the IV Additional Sessions Judge, (Adhoc-II), Thodupuzha. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.91/2011 on the files of the Judicial First Class Magistrate's Court-II, Thodupuzha. 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 a fine of 1,79,722/- which shall be paid in Crl.R.P. No.2144 of 2013 2 full as compensation under Sec.357(1) of the Cr.P.C and in default to pay simple imprisonment for a further period of two 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 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 Crl.R.P. No.2144 of 2013 3 legally enforceable debt and Ext.P8 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 fine 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 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 Crl.R.P. No.2144 of 2013 4 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 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 six months, I am inclined to grant six 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 Crl.R.P. No.2144 of 2013 5 1,79,722/- (Rupees One lakh Seventy Nine thousand Seven hundred and Twenty two only) within a period of six months from today and the same shall be given to the 2nd respondent/complainant as compensation. iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 11th May, 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. v. Warrant, pending in execution of the sentence imposed on the revision petitioner under the impugned judgment, shall be kept in abeyance till 12th May, 2014. The Criminal Revision Petition is disposed of accordingly. (K. HARILAL, JUDGE) stu //True copy// P.A to Judge Crl.R.P. No.2144 of 2013 6