E.K.Ussan v. Manikkoth M.Sekharanmarar & State

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.HARILAL MONDAY, THE 29TH DAY OF JUNE 2015/8TH ASHADHA, 1937 Crl.Rev.Pet.No. 3045 of 2005 --------------------------------- Crl..A 724/2004 of SESSIONS COURT, KOZHIKODE CC 264/2003 of J.M.F.C. - II, PERAMBRA REVISION PETITIONER(S)/APPELLANT/ACCUSED::

------------------------------------------- E.K. USSAN, S/O. SAIDUTTY HAJI, EDOTHKUNNUMMAL KULANGARATH HOUSE, AVIDANALLUR AMSOM POONATH DESOM, KOYILANDY TALUK.

BY ADV. SRI.SANTHARAM.P RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:: ------------------------------------------------

1. MANIKOTH M. SEKHARA MARAR, S/O. GOVINDA MARAR, SREEGOVINDASADANAM, PANANGAD AMSOM DESOM, KOYILANDY TALUK.

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

R1 BY ADVS. SRI.P.T.MOHANAKUMAR SMT.K.A.ANGEL TREENA SMT.ARLISS TRENCY ANTONY R2 BY PUBLIC PROSECUTOR SRI.JUSTINE JACOB.

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

STU

K.HARILAL, J.

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = ==== Dated this the 29th 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.724/2004 on the files of the Sessions Judge, Kozhikode Division. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C.No.264/2003 on the files of the Judicial First Class Magistrate's Court-II, Perambra. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one month and to pay a compensation of 25,000/- to the ₹ complainant under Section 357 Cr.P.C.

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.P1 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, if this revision petition is found liable to be dismissed.

6. Similarly, the substantive sentence imposed on the revision petitioner is too harsh and excessive. The learned

counsel for 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 put in great hardship.

7. 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.

8. 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 imprisonment is reduced and modified to simple imprisonment for one day till rising of the court. Consequently, in supersession of the sentence imposed by the trial court and modified by the appellate court, the Revision Petitioner will stand sentenced as follows:

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.25,000/- (Rupees Twenty Five thousand only) to the 1st respondent/complainant within a period of two months from today. If the petitioner had deposited 15,000/- in ₹ compliance with the interim order dated 14.12.2005 of this Court, the same shall be given credit to and the balance alone needs to be paid as compensation. In that event, the complainant is allowed to withdraw the said amount of ₹

15,000/- from the trial court.

iii. The Revision Petitioner shall appear before the Trial Court to suffer substantive sentence of simple imprisonment as ordered above on or before 31st August, 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.

Stu //True copy// P.A to Judge