Kerala High Court
P.A.Vinayachandran Nair vs Thomas Varghese on 26 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 20TH DAY OF JANUARY 2014/30TH POUSHA, 1935
Crl.Rev.Pet.No. 100 of 2014 ()
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AGAINST THE JUDGMENT IN CRL 212/2013 of ADDL. DISTRICT &
SESSIONS COURT - IV, PATHANAMTHITTA DATED 26-11-2013
AGAINST THE JUDGMENT IN ST 372/2010 of J.M.F.C.-II,
PATHANAMTHITTA DATED 31-08-2013
REVISION PETITIONER/APPELLANT/ACCUSED:
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P.A.VINAYACHANDRAN NAIR, S/O. APPUKUTTAN NAIR,
PANAMTHITTATHIL, ATTACHAKAL P.O.,
KONNI.
BY ADV. SRI.ARUN.B.VARGHESE
RESPONDENTG/RESPONDENTS/COMPLAINANT & STATE:
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1. THOMAS VARGHESE, S/O. N.T. VARGHESE,
KAMUKUMPALLIL, VAKAYAR P.O., KONNI.
2. STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682 031.
R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 20-01-2014, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
K. HARILAL, J.
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Crl.R.P. No. 100 of 2014
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Dated this the 20th 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.212/13 on the files of the Additional District & Sessions Judge-IV, Pathanamthitta. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.327/10 on the files of the Judicial First Class Magistrate's Court-II, Pathanamthitta. According to Crl.R.P. No. 100 of 2014 -: 2 :- the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment till rising of the court and to pay a compensation of Rs.3,00,000/- to the complainant under Sec.357(3) of the Cr.P.C. In default of payment of compensation, to undergo simple imprisonment for three 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/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 Crl.R.P. No. 100 of 2014 -: 3 :- 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 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 SC 2566), held that the offence under Section 138 of the N.I. Act is almost Crl.R.P. No. 100 of 2014 -: 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) 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. 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 imprisonment for one day till rising of the court.
ii. The Revision Petitioner shall pay a compensation of Rs.3,00,000/- (Rupees three lakhs only only) to the 1st Crl.R.P. No. 100 of 2014 -: 5 :- respondent/complainant under Sdc.357(3) of the Cr.P.C. within a period of six 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 21/7/2014 with sufficient proof to show payment of compensation .
iv. In default, the Revision Petitioner shall undergo simple imprisonment for a period of three months.
v. If the revision petition is undergoing imprisonment in execution of the sentence imposed on him under the impugned judgment, he shall be released forthwith.
The Criminal Revision Petition is disposed of accordingly.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge