Kerala High Court
D. Sukumaran vs Thomas Mathew on 4 November, 2013
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY, THE 4TH DAY OF NOVEMBER 2013/13TH KARTHIKA, 1935
Crl.Rev.Pet.No. 2172 of 2013 ()
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CRL.A.NO. 40/2012 OF ADDL.SESSIONS COURT, PATHANAMTHITTA
CC.NO. 712/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA
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REVISION PETITIONER/APPELLANT/ACCUSED:
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D. SUKUMARAN, MOHANA VILAS,
H.M.MUTTOM LPS MUTTOM HARIPAD
RESIDING AT MOHANAVILAS,
NEAR MUTTOM LPS MUTTOM HARIPADU.
BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA)
RESPONDENT(S)/COMPLAINANT AND STATE:
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1. THOMAS MATHEW,
PAKALOMATTOM, KALIKERIL HOUSE, MUTHOOR P.O.,
THIRUVALLA,PATHANAMTHITTA DISTRICT, PIN-689 645.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 04-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
K. HARILAL, J.
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Crl.R.P. No. 2172 of 2013
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Dated this the 4th 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.40 of 2012 on the files of the Additional Sessions Judge, Pathanamthitta. The above appeal was filed challenging the judgment finding the Revision Petitioner guilty of the said offence, passed in C.C.No.712 of 2009 on the files of the Judicial First Class Magistrate's Court, Thiruvalla. According to the impugned judgment, the Revision Petitioner is sentenced to undergo imprisonment till rising of the court and to pay a compensation of Rs.1,00,000/- to the 1st respondent/complainant under Section 357 (3) of Crl.R.P. No. 2172 of 2013 2 Cr.P.C. In default, the Revision Petitioner shall undergo simple imprisonment for one month.
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 respondent. So also, it is found that the debt due to the 1st 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 Crl.R.P. No. 2172 of 2013 3 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 five months.
4. The Supreme Court, in the decision in Kaushalya Devi Massand v. Roopkishore (AIR 2011 SC 2566), 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 Crl.R.P. No. 2172 of 2013 4 of justice. Further, in Vijayan vs. Baby (2011(4) KLT
355), 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. Though notice had been served on the 1st respondent/ complainant he didn't enter appearance to contest the Revision Petition on merits. 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. Crl.R.P. No. 2172 of 2013 5
ii. The Revision Petitioner shall pay a compensation of Rs.1,00,000/-(Rupees One Lakh only) to the 1st respondent/complainant within a period of five months from today.
iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 04/04/2014 with sufficient proof to show payment of compensation .
iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of one month.
v. Warrant pending in execution of the sentence imposed on the Revision Petitioner under the impugned judgment shall be kept in abeyance till 04/04/2014.
The Criminal Revision Petition is disposed of accordingly.
Sd/-K.HARILAL JUDGE MJL