H.A.Subhan v. Anubis R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE 18TH DAY OF JUNE 2015/28TH JYAISHTA, 1937 Crl.Rev.Pet.No. 1080 of 2004 ( ) --------------------------------- CRL.A 566/2002 of ADDL. SESSIONS JUDGE, NORTH PARAVUR ST 811/1999 of J.M.F.C.-I, ALUVA REVISION PETITIONER(S)/APPELLANT/ACCUSED:
------------------------------------------ H.A.SUBHAN, S/O.HAMEED BAVA, SAFIA MANZIL, THETTIKKOTTU LANE, PERUMBAVOOR. BY ADV. SRI.P.ALI RESPONDENT(S)/RESPONDENTS/COMPLAINANT:
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1. ANUBIS R., F-4/14, SATELLITE TOWNSHIP PADAMUGHAL, KAKKANAD WEST, KOCHI-30 REP: BY HIS POWER OF ATTORNEY HOLDER P.L.GEETHA DEVI, W/O.PUSHKARAN SURABHILA THURAVOOR P.O., CHERTHALA.
2. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADVS. SRI.B.JAYASANKAR SRI.S.K.HARISH R2 BY PUBLIC PROSECUTOR SRI.JIBU.P.THOMAS.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
STU
K.HARILAL, J.
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = ==== Dated this the 18th day of June, 2015
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.566/2002 on the files of the Additional Sessions Judge, N.Paravur. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.No.811/1999 on the files of the Judicial First Class Magistrate's Court-I, Aluva. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one month and to pay compensation of 7,000/- to the complainant ₹ under Section 357(3) Cr.P.C and in default, to 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 or illegality or impropriety in the findings whereby the trial court convicted him.
3. 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.P2 cheque was duly executed and issued in discharge of the said debt.
4. This Court is satisfied that the courts below had meticulously evaluated the evidence on record. 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.
5. At last, the learned counsel for the Revision Petitioner submits that the sentence imposed on the Revision Petitioner is disproportionate with the gravity and nature of the offence contemplated under Section 138 of the N.I.Act. The learned counsel further sought for some time to pay the compensation as he is unable to raise the said amount forthwith due to paucity of funds.
6. 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 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.
7. Having regard to the nature and gravity of the offence, in the light of the decisions quoted above and submission made at the Bar, I am inclined to grant two months time to pay the compensation. Similarly, the substantive sentence of simple imprisonment for one month will stand set aside. Consequently, this Revision Petitioner will stand sentenced as follows:
i. The Revision Petitioner shall pay a fine of
Rs.7,000/- (Rupees Seven thousand only) within two months from today and the same shall be given to the 1st respondent as compensation under Section 357(1)(b) of the Cr.P.C. Needless to say, in default, the same shall be realised in accordance with law.
The Criminal Revision Petition is disposed of accordingly.
Sd/- K.HARILAL, JUDGE.
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