High Court of KeralaCrl.Rev.Pet/1537/2002disposed of

T. Padmanabhan v. K.P. Suresh

2015-06-03Honourable Mr.Justice K.Harilal6 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 3RD DAY OF JUNE 2015/13TH JYAISHTA, 1937 Crl.Rev.Pet.No. 1537 of 2002 (A2) --------------------------------- CRL.A 112/2000 of ADDITIONAL SESSIONS COURT (FAST TRACK-I), PALAKKAD DIVISION ST 630/1998 of J.M.F.C., PATTAMBI .....

REVISION PETITIONER(S)/APPELLANT/ACCUSED:

---------------------------------------- T.PDMANABHAN, AGED 56, S/O. MADHAVAN, THONDIYIL VEEDU, PARUDUR VILLAGE, PARUDUR POST, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.M.S.UNNIKRISHNAN RESPONDENT(S)/RESPONDENTS/COMPLAINANTS:

----------------------------

1. K.P.SURESH, AGED 35, S/O. CHINNAN, KAIPARAMBIL HOUSE, PARUDUR VILLAGE, PARUDUR POST, OTTAPALAM TALUK, PALAKKAD DISTRICT.

2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

R2 BY PUBLIC PROSECUTOR SRI.JIBU P.THOMAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

OKB

K.HARILAL, J.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Crl.R.P. No.1537 of 2002 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 3rd day of June, 2015.

O R D E R

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.112/2000 on the files of the court of the Additional Sessions Judge, (Fast Track Court-1), Palakkad Division. The above appeal was filed challenging the judgment finding that the revision petitioner is guilty of the said offence, passed in S.T.No.630/1998 on the files of the Judicial First Class Magistrate's Court, Pattambi. According to the impugned judgment, the revision petitioner was sentenced to undergo simple imprisonment for three months and to pay to the complainant Rs.25,000/- as compensation under Section 357(3) of the Cr.P.C. and in

Crl.R.P.1537/02 :2: default to undergo simple imprisonment for one month.

2. In this revision, 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 the 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 the initial burden of proving execution and issuance of the cheque; whereas the revision petitioner had failed to rebut the presumption under Sections 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

Crl.R.P.1537/02 :3: 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 at. Therefore, I am not inclined to reappreciate entire evidence once again and I confirm the concurrent findings of conviction.

5. The revision petitioner contended 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.

6. Similarly, the substantive sentence imposed on the revision petitioner is too harsh and excessive. The revision petitioner prayed for setting aside the sentence of imprisonment also. If the revision petitioner is incarcerated for a period as ordered by the courts below, the entire family will be put in great hardship.

The Supreme Court, in the decision in

Crl.R.P.1537/02 :4: 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 v. 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.

8. Having regard to the nature and gravity of the offence, in the light of the decisions quoted above, I am inclined to grant three months time to pay the compensation. Similarly, the substantive sentence of imprisonment for three months will stand reduced and modified to simple imprisonment for one day till rising of the court. Consequently, this revision petition will stand disposed of subject to the

Crl.R.P.1537/02 :5: following terms:

The revision petitioner shall undergo simple imprisonment for one day till rising of the court.

ii. He shall pay a compensation of Rs.25,000/- (Rupees Twenty five thousand only) to the 1st respondent/complainant, under Section 357(3) of the Cr.P.C., within a period of three months from today.

iii.He shall appear before the Trial Court to suffer the substantive sentence of simple imprisonment as ordered above on or before 4.9.2015 with sufficient proof to show payment of compensation.

iv. In default, the revision petitioner shall undergo simple imprisonment for a period of one month.

The Criminal revision petition is disposed of accordingly.

Sd/- K. HARILAL, JUDGE okb.